Lord Campbell of Alloway: My Lords, let us leave aside the merits, which are indeed great, and look at the Question. How can you enforce implementation of an order of this court, the jurisdiction of which the states concerned have declined to accept? How can you conceivably enforce implementation?

Lord Hylton: My Lords, I thank the noble Baroness for her reply. Does she agree that more than 17,000 children per year are put at risk by the imprisonment of their mother, albeit sometimes only for short periods? Will the Government study what is the best practice of European courts, including even Russian courts, on the matter? Finally, will they seek to maximise the discretion of our courts and, whenever possible, avoid the imprisonment of mothers with young children?

Baroness Scotland of Asthal: My Lords, I can certainly assure the noble Earl that we have looked for some time at restorative justice models and case conferencing in order to deal better with childcare issues. That is very much at the forefront of our minds, and we are energetically looking at more successful ways to intervene with offenders in order to reduce recidivism much more than is the case at present.

Lord Lipsey: My Lords, I declare an interest as chairman of the British Greyhound Racing Board. Is my noble friend aware, despite what he has just said, that this abhorrent practice is definitely not illegalat the moment but is contrary to the rules of the National Greyhound Racing Club which, I am confident, will deal with the utmost severity with any licensed trainer who is proven to have been involved? Is the Minister further aware of greyhound racing's strong support for action under the Animal Welfare Bill regulations that would make the sanctions available to the NGRC, so far as the official industry is concerned, also available to be used against trainers at tracks not run by the NGRC?

Lord Rooker: My Lords, I understand the concerns over this matter and indeed, as we have said before, we have a good deal sympathy with what the noble Lord seeks to achieve through the amendment. But, as I have also said before, this is not the way to achieve it.
	The amendment would allow for the removal of a Northern Ireland Minister who was no longer committed to upholding the rule of law. The underlying aim—that support for the rule of law be embedded into the political life of Northern Ireland—cannot, of course, be faulted. That much we are all agreed on and that is what the Government have consistently said. We ultimately want all parties, including Sinn Fein, to unite in support of the policing arrangements in Northern Ireland.
	The amendment does not help us to achievethis aim. It is unnecessary and adds no value to the requirements already in place. Moreover, the Secretary of State has already made his position on this matter very clear and has repeatedly said that he will not set any further preconditions for anyone entering devolved government. That is the end of the matter. There will be no more preconditions. There are no excuses for devolved government not to be up and running, and we will not erect any more hurdles.
	The arguments against this amendment have been well rehearsed as the Bill has passed through this House. Noble Lords are aware of the requirements of the pledge of office under the 1998 Act. I have outlined many times the protections afforded by the pledge, which all Ministers must affirm before taking up their posts. It requires a commitment to non-violence and to exclusively peaceful and democratic means. As I said on Report, safeguards exist for where Ministers and parties fail to observe the pledge of office. The pledge is not simply words on paper; safeguards exist in case it is broken.
	In addition, on Report, I set out the statutoryduty to uphold the continued independence of the judiciary that all Northern Ireland Ministers are subject to under Section 4 of the Constitutional Reform Act 2005. The judiciary are the guardians of what we know as the rule of law. Therefore, the duty in the 2005 Act is the right and fitting way to ensure that the rule of law is upheld and is embedded into Northern Ireland's political life, rather than a further unnecessary amendment to the Bill. The amendment is not needed: the protection already exists in the pledge and in the 2005 Act.
	As I have said, we do not question the principle of what the noble Lord seeks to achieve; nobody does. However, for the reasons I have set out, we are firmly of the opinion that further safeguards are unnecessary. However, we recognise the strength of feeling and depth of concern on this matter, and I reiterate that we stand ready to take forward in legislation any changes to the pledge of office that the parties can agree on in the context of a package on other constitutional issues. I therefore hope that the noble Lord will not press his amendment.
	With the leave of the House, because this is the last opportunity I will have to speak on the Bill as it passes through the House, I have a short point to add. We all agree on the significance of the Bill currently before the House. It recognises and builds on the ongoing transformation of Northern Ireland. It looks to the future and recognises the possibilities that lie ahead. I have set out why I do not believe that the amendment inserting the process for amending Orders in Council that was accepted on Report is helpful. However, the ministerial team and I recognise the strength of feeling in both Houses about the inadequacy of the present arrangements for dealing with the bulk of Northern Ireland legislation. They are very unsatisfactory. I am therefore prepared to give the House the following undertaking: between now and 24 November, our focus is fixed on getting devolution up and running, which is plan A, and we do not want to be diverted from that. However, if that does not prove possible, for whatever reason, the Government will quickly introduce measures to make direct rule more accountable, including provisions that will enable Orders in Council to be amended in the light of views expressed by Members of both Houses in a way that reflects the spirit of the amendment passed by this House on Report. There will be an opportunity, agreed through the usual channels, for an amendability stage in the parliamentary consideration of Northern Ireland Orders in Council. We will also ensure that we legislate for Northern Ireland by primary legislation, wherever appropriate.
	On Irish donations to political parties, I regret that the amendment was pushed to a vote and the clause was removed on Report. I have written in detail to noble Lords about this matter. The effect is to bar entirely donations from Irish citizens and other bodies to political parties in Northern Ireland from November next year. This change clearly goes against the spirit of the Good Friday agreement and would have serious repercussions for the parties and the political process in Northern Ireland. That is why the Government will seek to overturn that amendment in another place.

Baroness Farrington of Ribbleton: It may assist the House if we treat my noble friend's intervention as the Minister speaking early in the debate on the Motion of the noble Lord, Lord Glentoran, which, as a result, will allow any noble Lord who wishes to speak.

Lord Trimble: My Lords, I welcome the part of the statement made by the noble Lord, Lord Rooker, regarding an amendability stage for Orders in Council. This is huge step forward and something that for 30 years we in the Ulster Unionist Party have been pressing for. It will take one of the more unacceptable edges off direct rule and help to make it more democratic. I hope that it will put an end to the scandalous situation that obtained in this House last week when legislation was forced through against the wishes not just of the Northern Ireland Members but of the people of Northern Ireland without the opportunity of discussing it in detail and focusing on aspects that could have been changed. There could have been legislation last week that would have been acceptable to people and which would have achieved most of the Minister's aims had there been the opportunity to deal with it in the way which I now hope will happen after November of this year. So I welcome that.
	However, I must also say that I do not welcome what the Minister said about the other change that was made on donations. I disagree entirely with his comment about the amendment being contrary to the Belfast agreement. That is not how I read the Belfast agreement and I claim to have a little expertise on the matter.
	I make one other point on the substance of the amendment proposed by the noble Lord, Lord Glentoran. I understand the principle behind it. He is entirely right that persons who do not support policing should not be in office. Whatever the arguments may have been a number of years ago, we now have settled arrangements for policing, which are broadly endorsed, and there can be no excuse for any party not endorsing and supporting policing as things stand. The Government are making a huge mistake in their approach to republicans by continuing to try to induce them with further concessions on devolution of policing, which is wholly premature.
	However, it might help the House on the substance of the amendment of the noble Lord, Lord Glentoran, to put in a little of the background. The amendment is to the provisions of the Northern Ireland Act that provide for exclusion of Ministers from office. The mechanism in the Act is defective. We recognised that it was defective on 10 April 1998 because the mechanism depended on cross-community support, and we knew that as a political reality that cross-community support would not exist then or in the future. Consequently, on the afternoon of that day we went to the Prime Minister and raised the matter. He communicated with us before the agreement was made—that is crucial in terms of the interpretation of the agreement—that if it turned out that the provisions of the Act on exclusion of Ministers were ineffective, he would support changes to the agreement. It was on the basis of that undertaking that I and my colleagues endorsed the agreement.
	I am happy to say that the Prime Minister kept his promise. He kept it by ensuring that the Northern Ireland Act 2000 was enacted, which noble Lords will realise gives the British Government unilateral power to suspend the Assembly, which has been exercised—and was exercised most recently in 2002 after an ultimatum given by my party to the Prime Minister following the discovery of the extent of the criminality that the republicans had been engaged in. I hope that that safeguard, which in our view was crucial to the making of the agreement, is sustained and will achieve the objectives that the noble Lord, Lord Glentoran, has put forward. I hope that when the Minister said that the amendment of the noble Lord, Lord Glentoran, was unnecessary he had that Act in mind and that procedure which has been used and should be available in the future if it turns out that republicans return to criminality.

Lord Kilclooney: My Lords, I want briefly to place on record the appreciation of the Ulster Unionist Party of the statement just made by the noble Lord, Lord Rooker. It has considerable significance, which is not only recognised in our Parliament here in Westminster but will be very important to the people in Northern Ireland.
	I repeat what I warned about a few months ago: when the Prime Minister of the United Kingdom and the Prime Minister of the Republic of Ireland met in Armagh city, they implied that there was a plan B, should devolution not proceed by the deadline of24 November this year, and that that plan B would be further involvement of the Republic of Ireland in the internal affairs of Northern Ireland. I warned that that was having a dangerous impact on the loyalist community in Northern Ireland and that alarm bells were ringing across the Province. The day after the meeting in Armagh, the UDA and UVF—two illegal organisations which had said that they were going to decommission—announced that their plans for decommissioning had been abandoned. That was a real warning of the impact of the Armagh meeting on the people of Northern Ireland.
	Today's statement by the noble Lord, Lord Rooker, is therefore not only good for the procedure of legislation relating to Northern Ireland under the direct rule system but, politically, it should improve political attitudes on the ground in Northern Ireland. As an Ulster Unionist, I recognise the courage of the noble Lord in coming forward today to clarify what will be the procedures should there be no devolution by 24 November.

Lord Rooker: My Lords, my right honourable friend does not make foolish speeches. He made an excellent speech on Sunday. It was quite a long one, and he said one or two things about the consequences of what might happen if plan B comes into being; in other words, direct rule will continue. We have made it quite clear that we would not mind the shop, as now. The process of reform will continue, and in some ways it will speed up. The fact that the Bill will achieve Royal Assent does not mean that policing will be devolved. That is what I need to put on the record. It will be years before the circumstances will be right, but the point is that the legal mechanism is in place. In fact it has already been put there and this Bill clarifies certain points from other legislation.
	For 30-odd years we have dealt with unsatisfactory legislation for Northern Ireland. Having got an Assembly up and running—and hoping that it would be back by now—we have tried in the past 12 months or so to find a mechanism. But we have reached the point where we have said what we have said today, and that goes further than anything else over the past 30-odd years. It is a major upheaval. Let me put it this way: the usual channels will want to make sure that this is for Northern Ireland only. It is secondary legislation quite distinctly for Northern Ireland.
	I want to make a final point. The other day someone mentioned the budget. In this House we do not debate in great detail the Budget for Great Britain; so I donot expect that we will be debating in detail the budget for Northern Ireland. There are rules on finance that we have to abide by, and I think that that is quite legitimate. But the general spirit of everything else shows that this is a major and substantial change to the democratic scrutiny of legislation under which the people of Northern Ireland live. I am grateful for noble Lords' response to the statement. I hope that when the Commons have looked at the amendmentsin your Lordships' House, and perhaps sent us a message back, we can reach an amicable solution so that the Bill can receive Royal Assent.

Lord Glentoran: My Lords, I thank the noble Lord, Lord Rooker, for that response and for the whole way in which he has handled the Bill for the Government. I refer in particular to a little incident that happened yesterday. Early in the afternoon I had a meeting with him in his office. Later in the afternoon, he was in my office and we reached a mutual agreement that we had it right at this end and the other end had cocked it up—if I can use that language in this place. The result has finally come out of the machine and the statement he has read out is agreed by all of us. I think that it is a very good compromise.
	I have also read the Secretary of State's speech, which probably should not have been mentioned this afternoon. It took me about 20 minutes to read—it is a very long speech. I am not sure that it was totally brilliant for the location in which it was made or for the audience to whom it was made. I thought he took a number of risks, but we shall find out how that has worked as it makes its way through.
	Having said that, I am afraid that I have to return to my amendment. On this occasion I think that the Government and the Minister are wrong and that it is necessary to strengthen this part of either the pledge or the reasons for removing Ministers from power. The point is critical—crucial—to the debate now taking place between the parties and there should be no fudging: it has to be absolutely crystal clear. I am sure that I am not being presumptive in saying that I know that the Minister agrees as strongly as I do that it is either right or wrong. You are either on-side with the police and the national judicial processes or you are not. Several times during the course of this debate the noble Lord, Lord Rooker, has put it more succinctly than I can. Speaking not just for myself but also for my party, we would like something stronger on the face of the Bill. I wish to test the opinion of the House.

Baroness Scotland of Asthal: My Lords, with the leave of the House, I would like to repeat a Statement made by my right honourable friend the Home Secretary in another place. The Statement is as follows:
	"Mr Speaker, I would like to make a Statement about our plans for transforming the Home Office. I have today placed in the Library a copy of a reform action plan which gives full details of the changes we intend to make. All political change should start with values and objectives. "The Home Office exists to protect the key elements of civilised society in this country—to reduce fear and increase security, from global terrorism to local cohesion in our streets and communities; from justice and fairness through to the protection of opportunities to live life in security. But the context in which we seek to apply these values is changing faster than ever before, and changing fundamentally, creating new and different challenges for the future."In the past 15 years we have seen seismic geopolitical changes, from the global to the local. Globally, the old Cold War had frozen the world into relative immobility. States were static and frozen, ethnic tensions and religious extremism repressed, borders inviolable and peoples largely static. "The end of the Cold War brought a torrent of new problems and, above all, the challenge of international mobility on a hitherto unimaginable scale. We have seen unprecedented levels of migration, with the movement of more than 200 million people in 2005, the development of international terrorism and the growth of global and organised crime. "From global to local, relative immobility has given way to social and geographic mobility, where the old group allegiances, extended family relationships and inherited patterns of voting and religious observance have broken down and, with them, the old forms of community cohesion. "Moreover, unlike most other government departments in this changing context, many of the people with whom the Home Office is tryingto deal—prisoners, criminals and illegal immigrants—see it as their primary objective not to co-operate with government and to resist our authority and evade our control."In the face of these challenges, the Home Office has been in a process of change and reform for some years. The department also has a more streamlined focus as a result of some of our responsibilities being transferred to other departments. "I therefore pay credit to my predecessors in this Government and to the civil servants who worked for them in facing these challenges. They took a system that was designed before the Cold War and improved it in three important ways: additional resources, improvements in technology, and legislative and practical solutions."These improvements have led to notable successes in key areas: crime is down significantly; your chance of being a victim of crime is at its lowest level since 1981; we have record numbers of police and an additional 6,300 community support officers on the streets; asylum applications are now dealt with in two months as opposed to 22 months. The passport service, which was failing just a few years ago, now regularly tops customer service polls, beating leading private sector organisations."But the underlying systems and practices for dealing with these issues have not changed sufficiently. Many of the fundamental underlying systems in the Home Office were designed for a pre-Cold War era and, in the face of the huge challenges outlined earlier, we have now reached the limit of what can be achieved without a fundamental overhaul. "The Home Office capability review, published today, strongly reinforces those views. We have seen some of these inadequacies surface recently, in co-ordination, administration and accounts. In co-ordination, the House knows all too well, for instance, how the release of foreign prisoners challenged systems across the Home Office and criminal justice system, and found them wanting."In administration, the House will know, for example, that the National Audit Office last year suggested that 283,000 unsuccessful asylum applicants might still be here, excluding dependants and those who claimed asylum before 1994 and after 2004, reflecting the difficulties that successive Governments have had in removing failed asylum seekers. This is reflected in IND's caseload of around 400,000 to 450,000 electronic and paper records, which, as the House will also be aware, are riddled with duplication and include cases where the individual has since died, or left the country, or are now EU citizens."In accounts, the House will also be aware that the Home Office's resource accounts for 2004-05 were disclaimed by the National Audit Office. We have sought to remedy these individual instances.I have today set out in a Written Ministerial Statement our plans to improve the way in which we deal with foreign national prisoners. We will tackle the caseload in IND with the aim of clearing it, not in 25 years, as has been speculated, but in five or less. And we will put our books in order. But, as today's capability review shows, we need to go much further in general and fundamental reform."For all these reasons, I am today setting out plans for an ambitious set of reforms across the department. In particular, we will sharpen the Home Office's focus on its core purpose of protecting the public through the six key priorities set out in today's plan. We will establish a new top team with a reshaped Home Office Board and 15 immediate changes at director level, which is over a quarter of all directors. We will reshape radically the structure of the Home Office with a major shift in responsibility and resource to the front line. We will fulfil our commitment to reduce the total size of the Home Office strategic and operational headquarters by 30 per cent by 2008. But we can also now make a commitment to a further reduction of 10 per cent by 2010."The cumulative effect of these changes will be to reduce the size of the headquarters of the Home Office and its agencies from 9,200 in 2004 to 6,500 in 2008, and to 5,900 by 2010. These changes will mark the biggest shift from the centre to the frontline in the Home Office's history. We will save £115 million per year by 2010 in headquarters costs which we will invest in improving front-line services."We will establish the Immigration and Nationality Directorate as an executive agency of the Home Office with a shadow agency in placeby April 2007, with strong accountability arrangements. We will establish clear performance frameworks for the operational services of the Home Office—the Immigration and Nationality Directorate, the National Offender Management Service, and the Identity and Passport Service—and hold the heads of those services accountable for performance."We will focus the National Offender Management Service headquarters on the job of commissioning high-quality services for managing offenders and driving up the performance of the probation and prison services. As a result,the National Offender Management Service headquarters will get progressively smaller, reducing by half by 2010."We will develop a renewed contract between Ministers and officials, clarifying respective roles and expectations in policy, operational delivery and management. We will seek to reduce further the bureaucratic burden on the police and other partners in tackling crime by implementing simpler performance arrangements for policing, crime and drugs. We are also launching today a radical reform programme with seven strands of change designed to transform the culture, skills, systems, processes and data of the Home Office."We have today set out a clear action plan to deliver this reform and more. By September, we will develop a full implementation programme. An external audit of progress will be conducted in December and annually thereafter. In the next few days we will supplement today's plan with two further sets of proposals for rebalancing the criminal justice system and reforming our Immigration and Nationality Directorate. "We are determined to deliver a confidently led and well managed Home Office which delivers high quality services that protect the public and better meets their expectations. I thank my Ministers and senior officials for all the work already put into the development of our new plans. "We do not start from year zero, and we will not end up with perfection. But this is the start of a long-term programme for transforming the Home Office. All involved—Ministers, directors and staff—know the extent of the challenge, and that this will not be accomplished overnight. But we are committed to early progress, to demonstrate our seriousness to the public and to our stakeholders and staff. The fundamental change we are seeking will require determination and endurance. This is the unglamorous hard work of delivering good government. That is now the task ahead".
	My Lords, I commend the Statement to the House.

Viscount Bridgeman: My Lords, I thank the Minister for repeating the Statement made in another place by her right honourable friend the Home Secretary.
	The past 12 weeks have witnessed a series of catastrophes at the Home Office, with daily disclosures of massive failures of policy—from the release of foreign prisoners to murderers on probation, from sex-for-visa scandals to dangerous prisoners being put in open prisons, from hundreds of thousands of failed asylum seekers to massive numbers of illegal immigrants. This has been a spectacular serial failure of Government. Each and every failure has serious implications for ordinary decent British citizens. At the very least, the Government waste hard-earned taxpayers' money and put excessive pressure on housing and public services; at worst, they threaten public safety and national security.
	We need to understand why that has happened. The wrong analysis of the problem will lead to the wrong conclusion. The Home Secretary puts it down to the end of the Cold War, and with it the rise in asylum seekers and other threats. However, that does not explain why Britain has had the second highest number of asylum applicants in the world in the past five years, a Britain that is further away from the failed states than any other European country except for Ireland, which is an island and is therefore harder to get to, and has borders that are easier to control.
	The reason for the problem is clear. The new Labour Government repealed Conservative laws allowing us to send people straight back to safe countries. Labour terminated Conservative welfare arrangements designed to deter economic migrants, and failed to negotiate a continuation of our right to return asylum seekers to France. They later tried to reinstate some of these, but it was too late. In the next five years we had over a quarter of a million failed asylum seekers enter Britain—failed asylum seekers, not legitimate ones—with almost 90,000 in one year alone. That is why the immigration and nationality department was overwhelmed; that, and a political decision not to strengthen our borders.
	Of course there have been failures of management, but there have been much bigger failures of political leadership. The same is true elsewhere in the Home Office. The débâcle over foreign prisoners and early-release schemes that are not working safely and properly come from the same cause, which was a political decision not to build enough prisons—although I pay tribute to the Minister for acknowledging that.
	The Government's own review showed that they needed 100,000 prison places by 2010, but even after the 8,000 new places the Home Secretary announced today, they will have fewer than 90,000 places by 2012. Again, there have been failures of management, but in a system put under intolerable pressure by failures of political leadership. Since 1997 there have been more than 1,300 new regulations, many hundreds of initiatives and more than 50 major Home Office Bills. That is more than all the criminal justice Bills in the previous century. Some of those Bills were not fit for purpose. That is not just our opinion but clearly the Government's too. We should take, for instance, the Criminal Justice and Court Services Act: 110 of its provisions never came into force; 17 were repealed before they came into force; and 39 more were repealed after they came into force. This was not the only Act in this state—massive amounts of work for no use whatever.
	This is not a department which is impossible to run. Indeed, it has given up responsibility for no fewer than 24 policy areas since 1997. But, under the burdens of a target-driven, bureaucratic, top-heavy approach pursued by this Government, its central staffing has doubled, though I note the Minister's remarks about reducing staff. It is perhaps revealing that its press officers have trebled.
	I finish on a positive note. Some of the Home Secretary's proposals announced today have merit. The agency proposals for the IND may improve some aspects of its management, but may make communications and co-operation with other parts of the Home Office more difficult. It will certainlynot absolve Ministers of responsibility for its effectiveness. We all hope that the measures announced today will succeed, but even if they do they are unlikely to resolve problems of the size the Secretary of State's department now faces.

Lord Dholakia: My Lords, I add my thanks to the Minister for repeating the Statement on the Home Office reform action plan. I trust that the noble Baroness, Lady Scotland, had a pleasant visit to the United States and that she has some better news to offer at some stage.
	It is too early to comment in detail since the plans were put in the Library only this morning. Suffice to say that this great Office of State is in turmoil. We do not need convincing that the Government have lost their way in the 10 years since they came to power. I do not dispute the context in which the values and objectives have been set out. Of course, the Home Office exists to protect the key elements of our civilised society, but do we genuinely believe that it has been effective? We have failed to reduce the fear factor, and despite increased activity by the police and security services, the threat of global terrorism and the fear it generates are still there. We still cannot put a hand on our hearts and say that we have cohesion in our streets and communities. It is bizarre to blame the end of the Cold War for the Home Office's woes, when it ended 15 years ago and this Government have been in power for 10 years.
	One has sympathy with the problems the Home Office has to deal with, comprising prisoners, criminals and illegal immigrants. The Government have for months ignored warnings about the prison overcrowding crisis. A last minute panic measure to conjure up extra prison capacity does nothing to address the long-term nature of our prison crisis. Unless the Government are serious about breaking the cycle of reoffending, in which prisons act increasingly as a revolving door for repeat offenders, our overburdened prison system will remain under severe strain.
	Why is it that the Government fail to acknowledge that at the root of the problem with criminals is their hyperactive attitude to legislation and half-baked media initiatives, with more than 50 law and order Bills and more than 1,000 new criminal offences, as rightly pointed out by the noble Viscount? It is a shocking indictment of the Government that despite five major immigration and asylum Acts there are more illegal immigrants unaccounted for now than 10 years ago.
	There is a need for a clear and consistent policy approach, which is lacking. We spend weeks debating police mergers and then find that they have been placed on the back-burner. No Home Office, however structured, could deal with the Government's volleys of initiatives. Too many high profile targets can jeopardise the Government's capacity to do anything else, because they focus all their energies on the one thing; hence tipping the balance of asylum seekers has led to the meltdown in all other areas of the management of illegal immigration.
	The Statement says that the Home Office has benefited from the increasing streamlining of functions by the transfer of some policy areas to other departments. So why will it not commit to a separate department of justice and a department of the interior, to enable a more coherent approach to those separate issues? It is extraordinary for the Home Office to claim that it can deport 450,000 failed asylum seekers in less than five years when it is currently deporting only 15,000 a year. We welcome the proposal for a more independent IND, but that must not absolve Ministers of responsibility. They should consider separating asylum, which is quasi-judicial, in accordance with international obligations, from immigration.
	In the present time of increased global tensions, we all want the Home Office to succeed in providing security for our nation. The recent revelation has shaken our confidence in the Home Office's ability to deliver it. Ten years in power is a long time to discover and discuss our errors. Let us hope that this new initiative works and that it is a department fit for purpose.

Baroness Scotland of Asthal: My Lords, first, I thank the noble Viscount, Lord Bridgeman, and the noble Lord, Lord Dholakia, for welcoming the Statement. It would be my pleasure to outline why I fundamentally disagree with the assessment that has been made of the way in which the past 10 years have been managed. The noble Viscount says that this is a Government in turmoil, as does the noble Lord, Lord Dholakia. The noble Viscount says that there has been a consummate failure in policy. That would be a fundamental misunderstanding of the difficulties with which the Government have been faced, the challenges that we have met and overcome, and the success that this Government have been able to deliver for the people of this country.
	I will straight away address some of the factors that have been alluded to. A heavy reliance has been put on issues in relation to asylum and immigration. It is right to remember the facts. Applications are down by 76 per cent compared to October 2002, which was its peak. In 2005, the intake was 24 per cent lower than in 2004; that was 25,720 compared to 33,960. Applications rose by 45 per cent between 1993 and 1997, which was a significant change. Asylum applications were down from more than 8,000 a month at the peak in October 2002 to just over 2,000 in the first quarter of 2006. Some 73 per cent of new substantive claims are decided within two months rather than the 22 months, including the old cases it took on in 1997 when we came to power.
	The ratio of removals to failed applicants each year is going up. In 1996, the number of removals was equivalent to only 20 per cent of predicted unfounded claims. That proportion was around 50 per cent in 2004, and in 2005 it increased further to around two-thirds of unsuccessful claims. We removed more principal applicants in 2005 alone—that is 13,670—compared to the last four full years of the Tory Government; that is 12,020 in 1993 to 1996. Removals of principal asylum applicants increased by 184 per cent between 1996 and 2005, but the intake increased by just 13 per cent. We have increased removals and principal asylum applications by 91 per cent between 1997 and 2005. That is not failure; that is a lot of hard, dedicated work significantly to improve matters.
	But a reality does have to be faced, because the Government had to decide whether to improve the system so that, in looking forward, we could have a better grip—a system that was faster, clearer and more effective. One of the large problems with which we have been faced is not being able to deal with these applications quickly enough. The 22 month delay that we inherited meant that many people had put down roots and had made commitments that were difficult to disrupt. We have moved on.
	So now is the time to look at the backlog. When one looks at the 450,000, it is right to bear in mind that in many of those cases we are not talking about individual people or individual issues, we are talking about applications. Some of the people involved will have died; some of them will have achieved their rights by a different means, because they have become European citizens; and some of them will have made multiple applications. So now is the time for us to look at this matter.
	There has been major change in the criminal justice system—the creation of the National Criminal Justice Board, local criminal justice boards, crime and disorder reduction partnerships and local strategic partnerships, all of which have inured to the benefit of the people of our country, together with the significant increase in police numbers and community support officers. Your Lordships may recall that many in this House derided those proposals initially, believing that they would have little or no effect. Yet we know that they have been among the most innovative and important changes that we have introduced. There was also legislation regarding anti-social behaviour—and I could go on.
	I must say as gently as I can to noble Lords opposite that I hear what they say about this Government's record, but I do not agree with them for the reasons that I have set out.
	However, it is clear that change is needed, because we are now faced with the need to bring about systemic change that will be better able to meet the new challenges with which we are now faced. Therefore, I very much welcome the comments in support of the changes that the Government now seek to make.
	As I have indicated, I hope that we will be in a position, with the leave of the House, to discuss in greater detail the other supplementary documents that we hope to produce soon. This is an important and significant change and I welcome the welcome given to it.

Lord Tomlinson: My Lords, I thank my noble friend for repeating the Statement made in another place. Much of what she said was fairly general regarding the problems of the immigration and nationality department. But will she confirm that not everything done by the immigration and nationality department should be condemned? For example, extremely valuable work is going on to facilitate the entry into this country of students wanting to enter further, higher and other forms of education. The immigration and nationality department's work in the Joint Education Taskforce, on which I have the privilege to serve, is extremely welcome and of enormous benefit, both in the short term and the long term, to the interests of this country, and is being done extremely well under the chairmanship of Alan Bucknall in the Home Office.
	Will my noble friend confirm that the new system planned to be introduced relatively shortly in relation to managed migration in the education system will not be detrimentally affected, because it is warmly welcomed by nearly all the participants in the Joint Education Taskforce and will not only bring great benefit, but is very much a high-level government priority, as shown in the Prime Minister's initiative for the attraction of overseas students? However, it does depend on the introduction of the new managed migration system.

Baroness Scotland of Asthal: My Lords, I must say to the noble Lord how much I disagree with him in relation to the failure of leadership and that this Government have not blamed staff. My right honourable friend the Home Secretary says that even the best staff, if they were working within a system that is fundamentally flawed and if they did so for 24 hours a day, could not deliver that which they could deliver if they had a smooth, effective and efficient system. That is what we are seeking to change. We inherited a system that was moribund and we tried to work within it, and we got limited but good results. Having got the best results out of it, it is now time to change. Noble Lords opposite may not wish to remember this but I hope that they will recall that staff levels were dramatically cut under the previous Government and morale was adversely affected thereby. That is a matter of history that one should perhaps reflect on when we contextualise where we are now.

The Countess of Mar: My Lords, it was with deep regret that I tendered my resigned to the Asylum and Immigration Tribunal a fortnight ago. I did that because I could no longer bear the incompetence of the whole business. I was giving cases my most careful and anxious scrutiny day after day knowing full well that the whole system that that was built on was flawed.
	The noble Viscount, Lord Bridgeman, gave a list of faults under this Government. I attribute quite a lot of the problems to the Tory Party's removal of work permits in 1992, which led to an increase in the number of asylum cases. Before that, asylum claimants used to be the intelligentsia from other countries but after that we got the people who came over mainly from the Asian subcontinent to work here for two or three years, to build their brick house in Pakistan, Bangladesh or India, and then to go back; then someone else would come over. A whole industry built up with agents taking thousands of pounds from families in order to get one person into this country to work. The agents used to say, "You will have to go through the system but at the end don't worry—you will not be removed; you will stay". Those people would have gone back in the past but they now stay.
	Does the Minister agree that it is necessary to pay much more attention to people at entry points in airports? I know that in some cases—Heathrow Airport, for example—the immigration and customs posts are not manned in the early hours of the morning. Don't kid me—the agents know this and that is when they bring people in. We do not know who goes out. I think it was this Government who stopped counting the people who leave. We need to know who comes in and who goes out. We also need much more co-operation between the Home Office and the Department for Constitutional Affairs. The Department for Constitutional Affairs is now cutting back on immigration judges and wondering why the cases are piling up, causing another backlog. Perhaps the noble Baroness could pay attention to those factors.

Baroness Scotland of Asthal: My Lords, as one of those usually burdened with that legislation, I could not possibly comment. But I can certainly assure your Lordships that we need have only that legislation necessary to deliver this agenda. We have committed ourselves to that.
	I should have answered another issue raised by the noble Lord, Lord Forsyth, about the new agency. In case there is a misunderstanding, I say that there will be no passing the buck to it. Political direction, strategy and strategic control will remain within the Home Office and with Ministers. The agency will deal with the operational issues which the Passport Office and others have demonstrated can be ably delivered through that sort of framework. When we have the second document, on how that transition is to take place, we will doubtless be able to debate the minutiae of those arrangements more keenly.

Lord Armstrong of Ilminster: My Lords, the experiences of the Passport Office and Prison Service have shown both the advantages and disadvantages of turning departments into agencies. I am glad that the Minister has drawn attention to the successes of the IND in recent years, which have tended to be overlooked because of recent developments and troubles. I invite her to be cautious in moving the IND to agency status, and not to hurry it. Once it is in a steady state and its operational objectives are clearly stated, understood and approved by Parliament, then would be a good time to put it on an agency basis. It would be wise to defer that change until that more steady state can be achieved.

Lord Mackay of Clashfern: My Lords, When the new Home Secretary described the Home Office as not fit for purpose, I understood him to refer to the whole office, not to any particular department in it, although I have no doubt that he had his mind on one part of the office in particular in coming to that conclusion. His statement was reasonably plain. I had some contact with the Home Office as part of my responsibilities in a related department for a number of years, and I had considerable respect for those who served as civil servants in it. I felt rather sad—I may have been completely wrong—that they should be described as working in an office that was not fit for purpose.
	The noble Baroness has been a Minister in the Home Office for some time. Can she tell the House whether the plans proposed today were drawn up since the new Secretary of State arrived or were in preparation under his predecessor?

Lord Forsyth of Drumlean: Cobbled together!

Lord Tebbit: Embarkation control!

Moved accordingly, and, on Question, Motion agreed to.
	commons amendments
	[The page and line references are to Bill 155 as first printed for the Commons.]
	1: After Clause 2, insert the following new Clause-
	"Mesothelioma: damages
	(1) This section applies where-
	(a) a person ("the responsible person") has negligently or in breach of statutory duty caused or permitted another person ("the victim") to be exposed to asbestos,(b) the victim has contracted mesothelioma as a result of exposure to asbestos,(c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph (a) or another exposure which caused the victim to become ill, and(d) the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a), in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason).
	(2) The responsible person shall be liable-
	(a) in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos-(i) other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or (ii) by the responsible person in circumstances in which he has no liability in tort), and(b) jointly and severally with any other responsible person.
	(3) Subsection (2) does not prevent-
	(a) one responsible person from claiming a contribution from another, or(b) a finding of contributory negligence.
	(4) In determining the extent of contributions of different responsible persons in accordance with subsection (3)(a), a court shall have regard to the relative lengths of the periods of exposure for which each was responsible; but this subsection shall not apply-
	(a) if or to the extent that responsible persons agree to apportion responsibility amongst themselves on some other basis, or(b) if or to the extent that the court thinks that another basis for determining contributions is more appropriate in the circumstances of a particular case.
	(5) In subsection (1) the reference to causing or permitting a person to be exposed to asbestos includes a reference to failing to protect a person from exposure to asbestos.
	(6) In the application of this section to Scotland-
	(a) a reference to tort shall be taken as a reference to delict, and(b) a reference to a court shall be taken to include a reference to a jury.
	(7) The Treasury may make regulations about the provision of compensation to a responsible person where-
	(a) he claims, or would claim, a contribution from another responsible person in accordance with subsection (3)(a), but(b) he is unable or likely to be unable to obtain the contribution, because an insurer of the other responsible person is unable or likely to be unable to satisfy the claim for a contribution.
	(8) The regulations may, in particular-
	(a) replicate or apply (with or without modification) a provision of the Financial Services Compensation Scheme;(b) replicate or apply (with or without modification) a transitional compensation provision;(c) provide for a specified person to assess and pay compensation;(d) provide for expenses incurred (including the payment of compensation) to be met out of levies collected in accordance with section 213(3)(b) of the Financial Services and Markets Act 2000 (c. 8) (the Financial Services Compensation Scheme);(e) modify the effect of a transitional compensation provision;(f) enable the Financial Services Authority to amend the Financial Services Compensation Scheme;(g) modify the Financial Services and Markets Act 2000 in its application to an amendment pursuant to paragraph (f);(h) make, or require the making of, provision for the making of a claim by a responsible person for compensation whether or not he has already satisfied claims in tort against him;(i) make, or require the making of, provision which has effect in relation to claims for contributions made on or after the date on which this Act is passed.
	(9) Provision made by virtue of subsection (8)(a) shall cease to have effect when the Financial Services Compensation Scheme is amended by the Financial Services Authority by virtue of subsection (8)(f).
	(10) In subsections (7) and (8)-
	(a) a reference to a responsible person includes a reference to an insurer of a responsible person, and(b) "transitional compensation provision" means a provision of an enactment which is made under the Financial Services and Markets Act 2000 and-(i) preserves the effect of the Policyholders Protection Act 1975 (c. 75), or(ii) applies the Financial Services Compensation Scheme in relation to matters arising before its establishment.
	(11) Regulations under subsection (7)-
	(a) may include consequential or incidental provision,(b) may make provision which has effect generally or only in relation to specified cases or circumstances,(c) may make different provision for different cases or circumstances,(d) shall be made by statutory instrument, and(e) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament."

Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. In speaking to Amendment No. 1, I shall speak also to Amendments Nos. 6, 7, 8 and 10. This group of amendments will make a real difference to sufferers from mesothelioma and their families who have been or would have been affected by the recent House of Lords' judgment in the case of Barker v Corus, and conjoined cases.
	As noble Lords who have been following these issues will know, the case of Fairchild fundamentally changed some of the principles of liability, but did not resolve whether liability should be joint and several. It was important to clarify that. The practical effects that became apparent as a result of the House of Lords' judgment have made this legislation necessary.
	In practice, the claimant would have to trace all relevant defendants so far as possible before liability could be apportioned and full compensation paid, or alternatively to issue multiple claims to recover damages on a piecemeal basis. That would cause delays in resolving claims and increase difficulties for claimants when, as I am sure noble Lords will appreciate, they and their families are already suffering considerable pain and stress.
	The Government have therefore acted quickly to address these problems. I am, as always, grateful to the noble Lord, Lord Goodhart, who in discussing these issues met my noble and learned friend the Lord Chancellor. I am very grateful to the team of the noble Lord, Lord Hunt, who have been extremely helpful in discussing these issues with us over the past few weeks and to the ABI, APIL and the TUC for their helpful and constructive input into these amendments.
	By providing for joint and several liability, Amendment No. 1 will enable the claimant to recover full compensation from any responsible person. It will also apply to claims made by the claimant's estate or dependants where he has not made or resolved a claim prior to his death.
	The provision will apply regardless of where the exposure has taken place. I am aware of views that this may extend the principle contained in Fairchild. That is not the case. Although the case of Fairchild related to a workplace exposure, the principle contained in the House of Lords' judgment was not restricted to these cases. To restrict this provision to workplace exposure would mean that some claimants affected by the Barker judgment would be left in exactly the same difficulties that they are now suffering, and that different claimants would be treated in different ways purely because of where the exposure occurred. I hope noble Lords will agree that that cannot be right.
	It also ensures that where a claimant has worked for a single employer who is now insolvent, but where only part of the period of exposure is covered by insurance, the claimant will be able to recover compensation from that insurer on the same basis as they could before the Barker case.
	Subsection (3) makes clear that this provision does not affect the existing law on contributory negligence. Where a claimant is responsible for part of the negligent exposure, it is right that that should be reflected in the level of compensation that he is awarded when liability is determined. But the provision will apply where, for example, a self-employed person has been negligently exposed by another while working as a contractor. Subsection (3) also makes clear that a person who has paid full compensation can then seek a contribution to the damages awarded from other responsible persons under the Civil Liability (Contribution) Act 1978. We think it is right to make it as easy as possible for defendants and insurers to recover contributions. Subsection (4) will ensure that defendants and insurers are able to recover contributions in as straightforward a way as possible.
	It is also important that the lawyers acting for claimants ensure that defendants are provided with a full employment and exposure history. We are looking at whether amendments to secondary legislation will help to achieve this.
	Subsections (7) to (11) confer a power on Her Majesty's Treasury to make regulations about the provision of compensation to a responsible person or an insurer of a responsible person in specified circumstances. These provisions are essential in helping to avoid delay in paying compensation and will allow the current practice to continue of employers or insurers making parallel payments with the Financial Services Compensation Scheme. As well as speeding up the claims process, that will also produce a fair outcome for insurers.
	The subsections confer a power for Her Majesty's Treasury to make provisions that would facilitate the speeding up of payment of claims to mesothelioma victims. Those provisions would then enable responsible persons to claim money back from the financial services compensation scheme when another responsible person and their insurer are both insolvent and therefore unable to pay their share of compensation payments. The power includes the ability to deal with situations arising prior to the establishment of the financial services compensation scheme that were settled under the Policyholders Protection Act 1975.
	The provisions would come into effect only once the Treasury has laid the necessary regulations and the FSA has made the relevant rules. However, the power provides that rules could permit the liable party to claim contributions in respect of claims dealt with from the date of Royal Assent.
	The Treasury will make regulations to be laid as soon as practicable in the autumn, once Parliament reconvenes. The FSA is considering what changes may be needed to the financial services compensation scheme to facilitate swifter settlement of mesothelioma claims in accordance with the aims of the amendments to the Bill. The FSA proposes to take forward any changes as a matter of priority.
	It is of the utmost importance that all claimants affected by the Barker judgment are able to secure full compensation, including the parties to that case and the cases conjoined with it, and any whose caseshave subsequently been settled or determined onthe apportionment basis proposed by Barker. Amendment No. 7 provides for that.
	This is an exceptional step, but we believe that it is justified in the exceptional circumstances that apply here. It would be unacceptable to provide assistance to future claimants but to leave a small group of claimants whose claims are unresolved or have been concluded on the basis of Barker to suffer the real disadvantages arising from that judgment. I believe that that does not raise difficulties in relation to compliance with the European Convention on Human Rights, for a number of reasons.
	During debates in another place, Mr Simon Hughes said that it was his understanding that those whom the retrospective change will adversely affect have all, effectively, signed up to it. That appears to be the result of a misunderstanding. I make it absolutely clear that the Government have not approached the parties to individual cases regarding the provision. We have involved the key stakeholders in developing the new clause to ensure that it works.
	First, the degree of retrospection is strictly limited and will apply only to a very short period and very few cases. We understand that, following the Barker judgment, the great majority of cases that were underway have been stayed, either pending clarification of the appropriate method of apportionment or in the light of the Government's announced intention to introduce the amendments. So very few cases may need to be reopened.
	In addition, those cases—and any that are currently unconcluded—will have been commenced prior to Barker, so the expectation of both claimants and defendants will have been that joint and several liability would apply. We are therefore not interfering with the settled expectations of the parties to any of those proceedings.
	The Scottish Parliament recently passed a legislative consent Motion to enable the provisions to apply directly to Scotland. Colleagues in Northern Ireland have also signalled their wish for the provisions to apply there. Amendment No. 8 therefore ensures that these provisions will apply across the United Kingdom. Finally, to ensure that claimants receive the benefit of the provisions as soon as possible, Amendment No. 6 provides for them to come into effect, together with the provisions in Part 1, on Royal Assent, and Amendment No. 10 makes the necessary consequential changes to the Title.
	I must make it clear that the amendments are just part of what the Government are doing. Together with colleagues in the Department for Work and Pensions, we are working with the Association of British Insurers, the Association of Personal Injury Lawyers and the Trades Union Congress urgently to identify ways of speeding up the settlement of these claims. The Secretary of State for Work and Pensions has already announced that he will be issuing a Written Statement in another place and in your Lordships' House about that work before the recess. I can tell the House that it will be issued tomorrow.
	Moved, That the House do agree with the Commons in their Amendment No. 1.—(Baroness Ashton of Upholland.)

Lord Hunt of Wirral: My Lords, I declare my interests as set out in the register, in particular as a solicitor and partner in Beachcroft LLP and as president of the All-Party Group on Occupational Safety and Health. All of us in that group are only too well aware of the dreadful mortal implications of mesothelioma. Our priority must be to improve the lot of people who are suffering from one of the most appalling conditions known to medical science. Each year, some 1,800 people are diagnosed with mesothelioma and, as matters stand, that is purely and simply a death sentence. Typically, a sufferer has at most 18 months to live and, within that short span, can expect a catastrophic decline in their quality of life. The number of sufferers is set to rise. The best estimate is that it will peak around 2020 and possibly slightly later.
	No one can be satisfied with the manner in which the compensation system for mesothelioma cases currently operates. In a minority of instances, liability is quickly established and a payment is made by a present or former employer or their insurer. However, in many hundreds of cases each year, there is no solvent former employer or insurer, or liability simply cannot be established, so many hundreds of sufferers receive no compensation at all. That is intolerable. What is ideally required is a comprehensive, clear and sustainable system that delivers some form of compensation or benefit quickly after diagnosis and without unnecessary recourse to the courts. This is surely a question of justice and human decency.
	However, we on these Benches in no way seek to oppose the Government's efforts to regularise the position on mesothelioma claims, even if the provisions deal with only one aspect of the subject. I congratulate the Minister and her team on their hard work on the new clause, and on doing their best to consult stakeholders widely, despite the very tight time scale and what must have been more or less intolerable pressure from elsewhere in Government. However, we should not delude ourselves; the Government's new clauses may be a necessary part of an overall settlement, but they will not, and cannot, deliver the reforms that are needed. This is no more or less than a first step, but it will also have some consequences, which is causing serious concern.
	One might quietly reflect for a moment, after this aspect of the matter is resolved for now, that the courts were directed to this point by the Government. It is also unfortunate that, having played a leading role in initiating the appeal process that led to the decision of this House in an appellate capacity, the Government have now sought to reverse the judgment in the three test cases, as the Minister has just acknowledged, without consulting some of those who are most affected. Many parliamentarians seemed to be under the impression that the insurers and employers involved in mesothelioma cases had willingly signed up to the Government's new policy when they had not. I very much welcome the way in which the Minister has put the record straight.
	Speed is of the essence, but this lack of full consultation and consensus is about more than just courtesy; it is about ensuring that the system works. It is vital that the new clause should operate for the benefit of all those involved in cases relating to this extremely unpleasant disease. Of course, claimants must be able to recover full damages to which they are entitled quickly and without undue complication. It is only fair, however, that those who pay such claims should have the opportunity to resolve sometimes difficult and complicated apportionment issues between themselves as economically and speedily as possible. I therefore particularly welcome the way in which the proposals prefer a simple "time on risk" approach between defendants, avoiding the need for extensive inquiries into and expert evidence on the effects of different types of asbestos and varying degrees of exposure. Such inquiries would be equally unwelcome for claimants, who would often have to be the main, perhaps the only, source of information, and it must be right that this sort of intrusion and unnecessary wasting of time should be avoided wherever possible.
	I also welcome the approach of the Minister to the difficulties caused by the current rules of the financial services compensation scheme. Although it has not been possible to settle those matters finally within the Bill itself, we recognise the amount of work that has already been done by the department, the Treasury and the FSA in getting this far. I welcome the Minister's commitment to resolving these matters and I hope that she will be able to reassure me that her department will work closely with the Civil Procedure Rule Committee on this.
	However, I should like to highlight a couple of points that in my view remain to be resolved. First, it is essential to the operation of this clause as between defendants that the claimant should provide as full an employment history as possible at a very early stage. The occupational disease protocol already flags the need for this. Moreover, it is generally recognised and acknowledged that insurers and other defendant interests have approached the drafting of this important amendment in a positive and constructive fashion. In fairness to them, their acceptance of the amendment must be on the basis that those representing claimants also abide by the spirit of compromise and provide the necessary information without difficulty. Secondly, while subsection (4) goes a long way to applying a presumption in favour of "time on risk" as the appropriate method of apportionment, this will need to be underpinned by procedural rules to make it workable.
	We should also reflect on the broader significance of this amendment. Not only have the Government acted to reverse what they believe to be the injustice of the decision of this House in its appellate capacity on Barker v Corus, but they have also been encouraged by the engagement of stakeholders to widen the scope of the clause so that it sets the scene for simplifying claims for mesothelioma in general. I know that the Secretary of State for Work and Pensions and his department continue to work with the Minister and with claimant defendant and insurer interests on ways of speeding up and simplifying the process, and we look forward to the Statement which the Minister has told us will be made tomorrow.
	Much progress has been made, but like all too many injury claims, those for mesothelioma are too complex and transactional costs are too high. For satisfactory progress to continue, everyone involved must be prepared to compromise and even to act against their own short-term interests from time to time for the greater good. I would also urge the Minister to look at one remaining gap which I consider has not yet been closed, and hence Amendment No. 1A. Under Barker and current case law, a claimant whose single former employer is now insolvent and who can trace only part of that employer's insurance cover runs a substantial risk of seeing his damages reduced. While subsection (2) covers other gaps created by the Barker decision, it arguably does not address this particular area. If the Minister is confident that the courts will deal with this in the time-honoured fashion, it would be helpful if she were able to confirm that today.
	I do, however, have very great concerns about retrospective application, and I believe that those concerns are shared by many others in the House. Since the judgment of this House, I understand that most mesothelioma cases have been deferred and relatively few have settled as courts have awaited the Government's response to the judgment. Nonetheless, I cannot recall ever a previous situation in which Parliament has been asked to enact legislation that would go so far as to overturn existing decisions of the courts in individual cases or reopen agreements reached between legally represented parties. Only yesterday there was a debate on this very point on the Government of Wales Bill in another place. If it is the will of the Crown in Parliament to impose retrospection, of course it has the power to do so. Yet all the foundations of our civil society, our legal and constitutional life, the Human Rights Act, centuries of accumulated statute and common law, basic principles of fairness and the very concept of the rule of law itself, all resonate with grave doubts about any such move.
	As my colleague Dominic Grieve said in another place only last night:
	"It is not common practice for the House to pass measures that can apply retrospectively. Retrospective powers enable the Government to interfere with private rights in a way that is contrary to the principles of the rule of law in this country".—[Official Report, Commons, 18/7/06; col. 219.]
	We must be cautious, ensuring that any such provision is tightly defined, will not be the subject of unjustified or unnecessary attempts to widen its scope and does not set a precedent.
	I was reassured by the words of Bridget Prentice in another place on Monday when she described the application of retrospection in this instance as,
	"an exceptional step...given the exceptional circumstances".—[Official Report, Commons, 17/7/06; col. 47.]
	The Minister has used similar language. I want it to be unique—a one-off. I hope she will be able to confirm that it will be.
	Turning to further points of detail, I fear the current amendment to Clause 15 is not clear enough to prevent those who have settled their claims in full, without a discount for Barker, from believing that here is an opportunity to reopen those claims and seek more damages. The modest amendments I propose—Amendments Nos. 7A, 7B and 7C—would make the position absolutely clear. If the Minister is not prepared to accept those amendments, I invite her to make it abundantly clear in a Statement to this House, and perhaps also in writing, that these provisions will be available only in those cases where it is clear that the claimant has been directly and negatively affected by the decision in Barker v Corus. Bearing in mind that we are dealing with an amendment to a Bill designed to curb the excesses of claims management companies, it would be ironic and intolerable if this clause were to have the unintended effect of rekindling the kind of speculative claims that we have seen all too often in other areas in the past.
	In closing, I have to say—in sorrow, not anger—that these past few days have not seen the parliamentary process in its best light. A judicial decision of the House's Appellate Committee was made in May; an amendment to overturn it first appeared on the Order Paper last Friday; it was then debated and adopted in another place on Monday; just two days later, here we are debating it in the expectation that it will receive Royal Assent in a matter of days. I fully accept the urgency of this matter—this disease will not indulge us in our deliberations and every day more people are struck down—but it might have been better for the Government to have spent the summer preparing a comprehensive Bill to overhaul the system in a holistic, coherent fashion rather than unbalancing the Bill in this way.
	I believe that we all have a responsibility to ensure that the somewhat tarnished reputation of our political life is rehabilitated and restored. Until this point, I have had nothing but praise for the manner in which the noble Baroness and her ministerial and departmental colleagues had conducted themselves; they consulted widely and consistently demonstrated courtesy, patience and a willingness both to listen and to be swayed by argument. In recent days and weeks, I fear, they have been somewhat swept away on a tide of party-political considerations and pressures from elsewhere within Government and from the Back Benches in another place. There has been a great deal of emotion—I understand that. I only wish I could be certain that these amendments would enhance the chances of a full and fair settlement but, hand on heart, I cannot say that I am. We are legislating in haste. Let us hope that we do not repent at leisure. I beg to move.

Lord Goodhart: My Lords, I am pleased to see the noble and learned Lord, Lord Hoffmann, in his place. He delivered the lead speech in your Lordships' House in the decision in Barker v Corus and if he chose to intervene in the debate, I would be interested to hear what he had to say. He shakes his head.
	It would be incorrect to say that the decision in Barker v Corus was wrong. In a sense, no decision of the Appellate Committee of your Lordships' House can be wrong; its members declare the law, and the law, as declared by them, is the law. I have read the decision in Barker v Corus—I understand and agree with the logical process by which it was arrived at, by a majority of, I think, four to one—but, nevertheless, it does not follow that because a decision is correct it should be followed unquestioningly. It is the role of the members of the Appellate Committee to declare what the law is, not what it ought to be. I agree that the decision in Barker v Corus would undoubtedly cause severe hardship to a number of people with what seem to me to be legitimate claims to compensation. Therefore, we on these Benches very much welcome the amendments. They would mean that people who get this dreadful disease will receive full compensation, except to the extent to which their own contributory negligence is a possible cause.
	When I first saw what was proposed, I was seriously worried by the retrospective effect of the legislation. I was entirely happy that the Bill should apply to cases where the cause of action had not yet arisen, but I was doubtful about its application to cases still in progress or where the cause of action had arisen but action had not yet been commenced.
	I agree with the noble Lord, Lord Hunt, about retrospective legislation. The problem is that a retrospective overruling by Parliament of the decisions of the courts is, in principle, a breach of the rule of law. That is particularly so where the case is a decision on rights between private individuals or companies. Observing the rule of law in this way is of special importance in a country where respect for the rule of law has persuaded many foreign businesses to use our courts to settle their legal disputes, to our great financial advantage.
	I have, however, been persuaded that retrospectivity is acceptable here by the wholly exceptional circumstances of this case. First, there is the unusual nature of the disease; it is caused not by an accumulation of exposure, such as silicosis, which is contracted by miners, or lung cancer, which is caused by smoking, but may be caused by the inhalation of even a single fibre of asbestos. Secondly, another exceptional circumstance is that since the Fairchild decision, it appears that most employers and insurers have acted on the assumption that liability would be joint and several, and not several alone. Thirdly, and perhaps most important, I rely on the fact that those most seriously affected by the decision in Barker v Corus are willing to accept this as a special case. I say "accept"—they do not welcome it but are prepared to accept it. Like us, they object to retrospective legislation in principle and do not wish this case to be treated as a precedent. I also note that Corus was not consulted and has objected to the retrospective element in this legislation. We therefore support the amendments, but I would welcome recognition by the noble Baroness—she expressed it at least in part in opening the debate—that this is an entirely exceptional case and not to be taken as a precedent for the future retrospective overruling of court decisions.
	There are some points of more detail. In the House of Commons, my honourable friend David Howarth raised a question of whether it could be argued that the drafting of the Bill left a possibility that damages could not be awarded at all in some cases. In the House of Commons, the Minister said that she would see whether the provision could be improved. Nothing has been done on this, which is presumably on the basis of legal advice. Was advice given that an amendment was not necessary, as suggested byMr Howarth? In case there is any remaining uncertainty, will the Minister assure us that claimants are not excluded from compensation on the grounds in any circumstances that they are guilty of contributory negligence?
	It seems, regrettably, that there is no possible way of providing compensation where all the claimants, employers and their insurers are either insolvent or have gone into solvent liquidation and have been wound up. In such cases, there is no defendant against whom proceedings can be brought. Will the Minister confirm that nothing in this Bill succeeds in giving compensation where there is no available defendant against whom proceedings can be commenced?
	It appears that compensation can be paid out of the Financial Services Compensation Scheme only if it is the insurer who is unable to pay. Does that mean that a defendant cannot claim against the scheme if another liable employer with the same victim has ceased to exist and was uninsured? What will happen if, as was the case with Barker, the victim was employed long ago and it cannot be ascertained whether the employer was insured? Is there any possibility in such a case of Corus being entitled to claim compensation from the scheme?
	I am concerned by the costs incurred on both sides in the Barker v Corus appeal to your Lordships' House. No order has yet been made and it is not clear who will be ordered to pay them. However, the decision of the Appellate Committee has been rendered largely irrelevant by this Bill and costs incurred by both sides have been to a very considerable extent wasted. Since the purpose of the Bill is specifically to overrule the decision in Barkerv Corus, would it not be appropriate for the Government to make a contribution towards the costs of either side, which have been rendered irrelevant by the Government's action? There seems to be a moral obligation to do so.
	Subject to those points, I have no other comments on the amendments in this group. I welcome the hope and expectation that they will very shortly become law.

Lord Dixon: My Lords, perhaps I may enter the debate as an ex-shipyard worker rather than a solicitor or someone from the legal profession. I assure the House that the Barker decision caused a great deal of concern in the area in which I live. I agreed with most of what the noble Lord, Lord Hunt of Wirral, said but, on retrospection, would he have a look at the Employment Act 1982, which his Government introduced, and see that there was a certain amount of retrospection then?
	I worked in the shipbuilding industry from the time I left school at 14 until I became a Member of Parliament in 1979. During that time, the longest period of employment that I had was the five years that I served as an apprentice. In the shipbuilding industry, you were lucky if you had one employer for a month. People used to be taken on for weeks or days. So, when they get this terrible disease of asbestosis, to ask them to remember every employer that they had is impossible. I could not remember every employer that I had during my time in the shipbuilding industry.
	As for the safety conditions that they worked in, there might be 100 men working in the hold and someone spraying asbestos, and the only safety provision was that the person spraying the asbestos would have a little Martindale mask, which was a bit of cotton wool with a bit of foil over it and an elastic band around the back of the head. Those were the conditions that these men worked under. I appreciate the legal jargon and I appreciate that we have got to get things right, but I welcome the Government's amendment and I congratulate my noble friend and my honourable friend Bridget Prentice in the other place.
	The decision was made quickly because of the problems of these families of shipbuilding workers. Those families do not have a great deal of money and do not have pensions. From the 35 years that I spent in the shipbuilding industry I did not have a brass farthing in pension. Pensions were introduced only after the shipyards were nationalised. These are the sort of people that we are talking about. I know that legal jargon says this and that, but these are human beings who went through life in terrible conditions and whose families have no money—so when the Bartlett decision was made, it caused a great deal of concern. Immediately after the Bartlett decision, I got a petition from people in the shipbuilding area where I live signed by 200 members of the families of people suffering from asbestos-related diseases. It is a terrible disease. In fact, if I go for an X-ray tomorrow I may have to declare an interest, bearing in mind the conditions in which I worked in the shipbuilding industry. But these men cannot afford to wait, nor can their families. I say to my noble friend that we should get this on the statute book as quick as possible and ease some of the problems and worries that these people have.

Lord Mackay of Clashfern: My Lords, the underlying decision in this case by the Appellate Committee is one of great interest to me, because it resulted from digging deep into a coal board case which I had lost a considerable time ago. It is a decision remarkable for the clarity of its foundations. The more recent decision, which this set of proposals is intended to deal with, is more limited in its scope. I believe that retrospection is something that normally we would not tolerate, but it has happened from time to time. Perhaps one of the most astonishing cases in which it happened was with the Burma litigation of some years ago, on which I happened to be instructed on behalf of the Government, who having lost before the Appellate Committee initiated legislation to overturn the decision. This retrospection appears to me entirely justified. Subject to the details mentioned by noble Lords, what has been proposed is eminently justified.
	It may be reasonably clear that, when an employer has become bankrupt or disappeared, if there was an insurance policy and the insurer was still available for a suit, the Rights Against Insurers Act would appear to give a remedy to a family under these provisions in the same way as if the employer itself was still available and solvent.
	I strongly sympathise with the sentiments expressed by the noble Lord who immediately preceded me. I had many cases relating to the shipbuilding industry when I was rather younger than I am today, and the conditions under which it operated were very difficult. I hope that legal jargon would in no way deprive those who worked in it of their undoubted rights.

Baroness Ashton of Upholland: My Lords, I am grateful to noble Lords who have participated in this short but important debate. As my noble friend Lord Dixon was speaking, I was aware that the noble Lord, Lord Hunt, had described this issue as "attracting emulsion". I think that the noble Lord will agree with me that the strength of feeling displayed by my noble friend is precisely the reason why—and I think that the noble and learned Lord, Lord Mackay of Clashfern, was alluding to this—it is so important that we have brought forward the measure in this way.
	The noble Lord, Lord Goodhart, is right in saying that the Appellate Committee made the right decision. We looked at the practical consequences of that decision, and decided that they warranted us to think how we might deal with what were clearly going to be intolerable conditions for people suffering from this terrible disease. It is right, too, that the DTI joined in with the case. It wanted clarification of whether liability should be joint and several. The consequences of the case were entirely appropriate for us to bring forward this amendment to the Bill.
	It is important, and the noble Lord, Lord Hunt, put it very well, that those who suffer from this disease are able to get the compensation they need as quickly as possible. I stress again that this amendment is but part of the work that will continue to be done by my department and by my right honourable friend the Secretary of State for Work and Pensions.
	Retrospectivity is something we thought about extremely carefully, for all the reasons indicated by those who have spoken. This is exceptional. It is not about setting a precedent. However, as the noble and learned Lord, Lord Mackay of Clashfern, indicated, from time to time—but only very occasionally—there may be circumstances where that is appropriate. The noble and learned Lord referred to another situation where that was the case.

Baroness Ashton of Upholland: My Lords, I was not suggesting that they were the same. I was simply trying to indicate that from time to time in Parliament one looks at this issue. The noble Lord, Lord Hunt, asked whether I would describe this as unique, and I am reluctant to do so, because I do not know what may happen in the future. I accept, however, that the particular circumstances make this case exceptional. I do not think that any noble Lord disagrees with me on that. I was not trying to make the two things fit together, and I apologise if that was the impressionI gave.
	The noble Lord, Lord Hunt, said that until we got to this point, he thought that I was behaving extraordinarily well as a Minister on this legislation. I am always sad when I disappoint. We have talked to the noble Lord's team quite frequently over the past few weeks and shared as much as we possibly could. But the noble Lord is right: when dealing with something at great speed because it is important, we may not do as much as we could—and I clearly did not. If I failed to discuss this as fully with the noble Lord as I might have, I apologise unreservedly.
	I hope, though, that what has ultimately come before your Lordships' House will be acceptable. When discussing this with stakeholders, we have tried to deal with those who can help us ensure that it works in practice. Noble Lords may disagree and think that we should have consulted more widely. We think that we consulted as appropriate, to ensure that we had something that would work. I hope that noble Lords will be happy with what we have done.
	I shall deal with the specifics of the amendments tabled by the noble Lord, Lord Hunt. I understand the point that the noble Lord is making in Amendment No. 1A. This is not a new issue. It was dealt with by the courts before Barker, as the noble Lord will know far better than I, in the case of Phillips v Syndicate 992. The court took the position that the liability for insurers was joint and several. Nothing in this legislation affects that decision or would make the courts decide it differently in the future. The difficulty with the amendment is that—we have discussed this with our own legal team—it appears to go further than the rest of the provision in beginning to codify the common law in this area, which is not needed and which I do not think the noble Lord wants. The noble Lord will be aware that it could lead to difficulties in the future if we tried to do that. We believe that we have addressed the point. We have looked very carefully at the noble Lord's amendments, as he would expect.
	Amendment No. 7A seeks clarity that the element of retrospective effect in the amendments is limited to settlements that were made on the basis of the Barker case. We agree with the sentiment behind the amendment because it is right that the retrospective effect is strictly limited. However, we do not believe that the amendment is necessary to achieve that end and we are not sure that it would achieve the desired outcome in any event. I am very happy to write to the noble Lord to that effect and put a copy of the letter in the Library.
	It is clear that new subsection (5) of Clause 15 is about claims that are affected by Section 3, as a result of the drafting of new subsections (3) and (4). The retrospective element is achieved by the combination of new subsection (3), which says that Section 3 has always had effect, and new subsection (4), which limits the effect to settlements and determinations on or after 3 May 2006.
	New subsection (5) follows that drafting, and indicates in paragraph (c) that an application for a court to vary a settlement will be limited to considering the effects that new Section 3 has on the settlement. So if a case is not affected by the new clause, the court will not vary the settlement, and it will be open to the court to penalise the applicant in costs.
	Amendments Nos. 7B and 7C, standing in the name of the noble Lord, Lord Hunt of Wirral, address similar objectives to the first amendment. They attempt to make it clear that the jurisdiction of the court is limited to cases where there has been a settlement or determination based on those considerations. As already indicated, it is clear that any application to the court under these provisions must be about the interaction of Clause 3 with the original settlement or determination. Moreover, since the application would be retrospective in nature, the court would be likely to construe its power narrowly. But a court considering such a matter must necessarily be seized of the whole case to consider those matters effectively. We are concerned that these amendments might impinge on that ability. They appear to suggest that a court could not consider the settlement or determination as a whole.
	The noble Lord was concerned that the Civil Procedure Rule Committee should be involved. We are not sure that detailed rules on this would be necessary as the clause already establishes a clear presumption, but we intend to ask the committee to consider the need for rules on the provision by claimants to defendants of a full employment and exposure history to facilitate the recovery of contributions. I am happy to confirm that.
	The noble Lord, Lord Hunt, also asked about the transactional costs of pursuing claims being too high. I could not agree more that there is a need to improve the system for dealing with these claims to ensure that compensation is paid more quickly and in a less costly way. We will be taking forward work to address these issues and I would be delighted to keep the noble Lord in touch with that. I look forward very much to discussing that with him.
	The noble and learned Lord, Lord Mackay of Clashfern, partly answered the question of the noble Lord, Lord Goodhart, about compensation when a defendant is not available. As the noble and learned Lord said, the financial services compensation scheme applies where insurers exist—that is its purpose. To try to expand it beyond that would be to take away its purpose. But I am aware of the issues, and I shall come back to the noble Lord because he rightly raises concerns about those who cannot find the relevant person in those circumstances. We will look at that in the work that is continued. The noble Lord wished to deal with a point raised by his honourable friend Mr Howarth, whom I know quite well from the Select Committee, concerning the element in the Barker case that recognised that any non-tortious exposure to asbestos suffered by the claimant did not mean that defendants who negligently exposed could escape liability. He suggested that the clause as drafted did not make that clear.
	We have looked at the point, and I will write toMr Howarth to confirm that. We do not consider this a problem in the drafting of the clause, becausethe relevant conditions for liability are that the responsible person has negligently exposed the victim and is liable in tort. Nowhere is it said that that liability must be determined only in accordance with cases determined before 3 May 2006. The liability mentioned in new subsection (1)(d) is the liability as the courts would determine it now. So I do not think that anything is needed to retain that part of Barker. Of course, it is always up to the courts to decide matters of common law differently, but there is no reason in this case to expect them to do so. We are therefore satisfied that we have dealt with that point as well as we can.
	The noble Lord, Lord Goodhart, asked whether the Government would pay costs. I cannot make any commitment today, but I will look into the issue and write to the noble Lord.
	I hope that I have answered as well as I can all the questions that have been raised by noble Lords. I am grateful for the contributions which have been made, especially that of my noble friend Lord Dixon. I hope that the noble Lord will not press his amendments but will accept the government amendments.

Amendment, by leave, withdrawn.
	On Question, Motion agreed to.
	COMMONS AMENDMENTS
	2: Clause 3, page 2, line 38, at end insert-
	"(5) The Secretary of State may by order provide that a claim for a specified benefit shall be treated as a claim for the purposes of this Part.
	(6) The Secretary of State may specify a benefit under subsection (5) only if it appears to him to be a United Kingdom social security benefit designed to provide compensation for industrial injury."
	3: Clause 14, page 8, line 44, at end insert-
	"(3A) An order under section 3(5) may not be made unless a draft has been laid before, and approved by resolution of, each House of Parliament."
	4: Page 9, line 8, at end insert-
	"(5A) The first order made under section 5 may not be made unless a draft has been laid before, and approved by resolution of, each House of Parliament.
	(5B) An order under section 5 which has the effect of removing or restricting an exemption from section 3(1) may not be made unless a draft has been laid before, and approved by resolution of, each House of Parliament."
	5: Page 9, line 9, leave out "An" and insert "Any other"

Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 2 to 5.
	The other place supported government amendments that explicitly provide the statutory power for the Secretary of State to bring claims management services provided in relation to industrial injuries disablement benefits within the regulatory net. Amendment No. 2 provides for this, and Amendment No. 3 provides for the order to be made by affirmative resolution.
	Citizens advice and his honour Judge Michael Harris, president of the Social Security and Child Support Appeals Tribunal, have raised specific concerns about claims management activities in claims for industrial injuries disablement benefitsand some other welfare benefits. Commercial intermediaries here typically charge a flat fee for this service or take a percentage of the benefit payment if the claim is successful.
	Our legal advisers considered further the definition in Clause 3, and despite its breadth, there is sufficient doubt whether claims management services in those types of claims would be covered to justify bringing forward these amendments. The amendment is precisely targeted on industrial injuries disablement benefits, which are benefits of a compensatory nature. It does not extend to welfare benefits more generally, which would be beyond the scope of the Bill.
	The Government accepted an amendment tabled in the other place by Mr Simon Hughes that changes the order-making power in Clause 5 to affirmative. Amendments Nos. 4 and 5 will require the initial exemption order and any subsequent restriction or removal of exemption to be debated in your Lordships' House and another place. We hope to capture almost everyone in the first order. But we are working with an unusually broad definition here, so a small number of organisations may well emerge that fall within the definition but which it is not appropriate to regulate. Subsequent orders are therefore likely to be used to tidy up anomalies. I beg to move.
	Moved, That the House do agree with the Commons in their Amendments Nos. 2 to 5.—(Baroness Ashton of Upholland.)

Baroness Ashton of Upholland: My Lords, I am very grateful for those comments. I shall take a moment to inform noble Lords about what we have been doing; the question of the noble Lord, Lord Hunt, gives me an opportunity to do so. Noble Lords who participated in the passage of this Bill were keen to see us get on with it and I made commitments about timing.
	We will come back to Parliament in the autumn to debate secondary legislation that will underpin the new regime. We have made good progress and have recently launched a formal consultation on the draft secondary legislation and conduct rules, which will include regional consultation workshops with claims intermediaries in Newcastle, Manchester and London. These set out in detail matters such as the authorisation criteria, the complaints handling requirements, indemnity insurance and situations in which it would be appropriate to cancel or suspend authorisation. In the next few weeks we are going to launch the remaining consultations on the exemption order, authorisation fee levels and the application form.
	I informed noble Lords at Report that we expect the regulation to be integrated into the regulatory structure to be provided for by the Legal Services Bill. I also set out an interim solution for dealing with regulation. An announcement was made in the other place that in the interim the Secretary of State, my noble and learned friend the Lord Chancellor, will regulate, supported by existing officials, together with appropriate senior expertise, skills and experience that are brought in from outside the Civil Service.
	I have referred before to the likelihood of a senior individual being recruited to help guide the successful implementation of the new regime. I am pleased to confirm today that, subject to finalising terms, Mark Boleat will be taking on this important role formally from the beginning of September.
	A key part of the proposed mechanism will be an external monitoring and compliance unit, whichwill help to process processing applications for authorisation, maintain a register of authorised persons, monitor compliance with the rules, monitor advertising and marketing activity, identify persons who are evading authorisation and advise the DCA on disciplinary matters and formal regulatory decisions. This will be supplied under contract by a single trading standards team operating across England and Wales, making full use of the networks already in place. The DCA retains full authority and responsibility for regulation but working with the right trading standards operation should help to ensure the early delivery of benefits to consumers.
	I have already visited Birmingham and the City of London trading standards units to learn more of the work they currently do. We have just concluded an expression of interest exercise and will be inviting short-listed departments to prepare detailed proposals. I expect the unit to be operational by October.
	We are also establishing a non-statutory regulatory consultancy group made up of representatives of the financial services and insurance industries, the legal profession, consumer groups and the claims management sector. It will help ensure that we continue to engage fully with all those who have an expert interest in making a positive difference in the claims sector. The group's first meeting will be next week.
	The timetable for regulation we are working tois as follows. The regulatory mechanisms will be established in October 2006; applications will be invited from November 2006; the deadline for applications is February 2007; the tribunal is to be established in February 2007; and offences and remaining provisions will go live in April 2007.
	In earlier debates I stressed the speed with which we have brought forward measures to regulate the claims management sector. I hope that noble Lords are reassured by that brief but, I hope, detailed résumé of the amount of work that has been going on since the Bill left your Lordships' House; it will continue through the summer months. I hope that I have given some comfort to those who are concerned that we need to be seen to get on with it.

[Amendments Nos. 7Ato 7C not moved.]
	On Question, Motion agreed to.
	8: Clause 16, page 9, line 24, at end insert-
	"(2) But section (Mesothelioma: damages) (and section 15(3) to (6)) shall extend to-
	(a) England and Wales,(b) Scotland, and(c) Northern Ireland."

Lord Norton of Louth: I wish to speak to Amendment No. 47B in the same group. When I chaired the Constitution Committee of your Lordships' House, the committee looked at the role of the independent regulators appointed by statute. In particular, we looked at the relationship between accountability and independence. Regulators have to be independent to do their jobs and that requires Ministers giving up some freedoms to protect the decision making of regulators. At the same time, regulators have a duty to explain, to be exposed to scrutiny and to be subject to the full rigours of the possibility of legal challenge. They have to fulfil their statutory duties.
	The independence of regulators, as my noble friend has already said, is crucial. It is important that independence is seen to exist. Perhaps I may quote from paragraph 121 of the committee's report:
	"Our evidence suggests once again the broad range of support that underpins a regulatory framework that separates ministerial roles and responsibilities from those of independent regulators, and that this fact should be well communicated on a regular basis by Government. Water UK, for example, told us that 'For Ministers and regulators frequently to reassert the independence of the regulator on economic decisions is helpful; and, after all, we had a survey of investors recently and 96 per cent of them said that they regarded the independence of the regulator as being very important, so just a frequent reassertion of it would be helpful'".
	It was also clear from our evidence that, on the whole, Ministers welcomed and supported that independence. They saw that the independence of regulators is a vital ingredient in maintaining consistency, for ensuring that regulatory decisions are taken by competent authorities—which, as we noted, accords well with current and prospective developments in the European Union—and for promoting confidence about regulation among those investing in regulated industries, as well as customers on whose behalf it is carried out. It is also extremely important for promoting confidence among those bodies that are regulated.
	In evidence to the committee, the Department of Trade and Industry said that,
	"the independence of economic regulators from Government—insulating decisions from short term political factors—is a fundamental contributor to regulatory certainty and prerequisite for continuing to attract private finance to regulated sectors".
	The independence of economic regulators is thus recognised as crucial and as the report stressed, it is not at the expense of accountability. On the whole, we found that Ministers recognised and welcomed that independence.
	That brings me to the provisions of the Bill. The amendment moved by my noble friend Lady Wilcox seeks to protect the functions of the economic regulators. My amendment is designed to probe the Government about what they intend to do to protect the independence as well as the jurisdiction of the economic regulators. As my noble friend has said, some of the economic regulators have concerns that the provisions of the Bill could be used to amend the statutes creating them and the framework within which they operate. Orders could be used to constrain their jurisdiction or to limit their independence. As my noble friend Lady Wilcox said, and as she argued at Second Reading, it is not a hypothetical possibility. She mentioned the clash between the Transport Secretary and the rail regulator in 2001 which showed that in exceptional circumstances a Minister may try to limit the independence of a regulator.
	Thus, there is a need to protect the independenceof the economic regulators and—picking up onmy earlier point about reassertion of that independence—to be seen to be doing so. There needs to be a change to the Bill to reassure investors as well as the regulated bodies that that independence will be protected and that it will not be subject to the possibility, at any time, of a Minister deciding to use the order-making power to get round the decision of a regulator.
	My amendment is designed to cover independence as well as jurisdiction in order to prevent a Minister transferring the functions of a regulator to another agent. The regulatory powers have to stay in the hands of the independent regulator. Like my noble friend Lady Wilcox, I have no doubt that the Minister will reiterate the Government's commitment to the independence of the economic regulators and say that there is no intention to use powers in the Bill to affect their independence. The problem, as has been variously reiterated in our debates, is that the Minister's words cannot bind a future Government. The need for an amendment is especially crucial in this case to demonstrate that the Bill cannot be used for that purpose. This Bill brings into being the sword of Damocles. It needs to be removed.

Lord Borrie: I share the view of the noble and learned Lord, Lord Lloyd of Berwick, that, of the two amendments, the amendment of the noble Lord, Lord Norton of Louth, is to be preferred. The amendment is in his name and that of my noble friend Lord Berkeley, who is unfortunately not able to be in his place today.
	Several of the agencies listed in the amendments were created when former publicly owned industries were privatised. Because an element of monopoly was created, a regulator was needed to control monopoly abuse with a measure of price control. That was the case with gas, electricity, the railways and water. Of course, I entirely agree with what each of the three speakers so far has emphasised. The word "independence" is absolutely vital: independence from the industry and ministerial control, except the minimum necessary to establish one's financial needs to the Treasury each year; but otherwise independent of the Government.
	It may be that, at some stage during the lifetime of one of these agencies, competition in the industry develops to such an extent that regulation is either no longer needed—that might sound rather extreme—or, at any rate, need not be so stringent. Therefore, the regulations imposed by or upon the agency may need to be changed. Both of the amendments are somewhat extreme, in that no detail of any kind could be altered except by statute when a regulatory reform order would surely be quite useful in dealing with the detail. The speeches of the noble Baroness and the noble Lord, Lord Norton of Louth, were not attacking detail but were concerned with independence and interfering with the principles and basic functions of the agencies.
	Ofcom is referred to. Some of us were here during the lengthy debates on the Communications Bill, which became the 2003 Act. It involved a massive merger of a number of separate agencies dealing with television and radio, the Broadcasting Standards Commission and so on. It is a huge piece of legislation and regulation. The legislation imposed rules on Ofcom. Of course, as the years have gone by, Ofcom itself has imposed regulation on those subject to its jurisdiction. It occurs to me that after two or three years, let alone 10 years or so, there may also be a need to deal with the detail of regulation in a way which does not necessarily have to involve full-scale primary legislation.
	Indeed, either Ofcom or the other regulators mentioned in these amendments may be desired by the agency itself in order to perform its tasks better. To seek an order under the Act would surely be sensible. We have not yet debated the various preconditions, safeguards, consultation and so on. I will not go into that, because we will be debating it at length in due course. I ask those of your Lordships who are inclined to favour a detailed amendment like either of the amendments before us to bear in mind that there are lots of safeguards with regard to any order made under the Bill.
	I favour Amendment No. 47B because it is more cautious and gentle than that of the noble Baroness. I could not help notice, having previously had a connection with the Office of Fair Trading, that it has been added in, whereas it was not in the original one. It reminds me of a point on which I can support the noble Lord. Not long ago, the Hampton report proposed that quite a fundamental part of the Office of Fair Trading's work—consumer affairs and protection—should be hived off and handed, together with local authority trading standards matters, to a new agency called the consumer and trading standards agency.
	That idea was shot down by the Treasury, much to the relief of those presently in charge of the Office of Fair Trading, who have been able to retain their consumer affairs jurisdiction. I support what the noble Lord, Lord Norton, was saying on this matter. If something substantial was proposed in terms of the remit given by statute to any of these agencies, then it ought not to be attempted by way of a regulatory reform order but by something else.
	I hope that the Minister will say a word or two about another part of the amendment of the noble Lord, Lord Norton, dealing with freedom and independence from having the "wishes" of the Minister imposed on a regulator. Do the Government feel that that has any effect on something quite common in legislation, that agencies should be subject to a ministerial direction—the technical term—in certain circumstances? The noble Lord is probably trying to get at ministerial directions which inhibit the independence of these agencies. I feel a measure of support for him on that.

Lord Lloyd of Berwick: I am very grateful to the noble Lord. The point that he made earlier was that this amendment would prevent an order from being put through even where the regulator wanted it. Surely that difficulty could be met easily enough by inserting the words "without the consent of the regulator" in the proposed amendment.

Baroness Wilcox: The present chairman of the Office of Rail Regulation wrote to the Chancellor of the Duchy of Lancaster protesting about the scope of Part 1. He has warned of exactly the same hazards of which the former rail regulator warned—the jeopardy to private investor confidence created by the power of a Minister to interfere with the independence or jurisdiction of the principal economic regulators. I have not heard anything from the Minister that has changed my opinion that he is likely to be able to do that again. He may say that there is no intention to do so, but words cannot bind a future Government. If that is what he is telling me that the Bill will do, I cannot see that that is the case.

Lord Borrie: Of the various choices helpfully put forward by the noble Lord, Lord Goodhart, I favour Amendment No. 62, in the name of the noble Lord, Lord Norton of Louth. I do not suppose he would say that it is perfect or comprehensive, and if there were any doubt it would depend on judicial interpretation. However, the noble Lord, Lord Jenkin, has made a powerful point in referring to Clause 9. If the Bill mentions the Human Rights Act 1998, why can it not mention other constitutional legislation which, it could be argued, is equally important?
	An attempt has been made to list types of constitutional laws, in Amendment No. 63 in particular. I do not like that because I expect that any of us, when looking at each item carefully, could be critical. I would be particularly critical of proposed subsection (2)(h) in Amendment No. 63, which refers to,
	"the statutory powers of local authorities".
	Local authorities deal with a huge body of legislation which covers everything from sewage to highways to transport to goodness knows what. Such legislation could hardly be regarded as of constitutional importance or be anywhere near as important as the other matters listed in the amendment such as the powers of the Houses of Parliament, the duration of Parliament and so on. The trouble with a list is that if it is not comprehensive you will miss something out; and if, as I suggest, the list includes inappropriate matters such as the statutory powers of local authorities, one has objections. I think the approach of the noble Lord, Lord Norton, is much better.
	I fear that the Government may take help from Clause 4, which relates to preconditions. The clause contains various phrases which are no doubt important, but it is terribly vague on their meaning. It may be said that orders cannot be made under this Bill which would prevent someone continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise—such as, I suppose, the right to jury trial in many instances—and Clause 4(2)(d) provides that orders cannot be made which would remove any necessary protection. That is incredibly vague.
	I hope the Minister will have something more positive to say about the amendments' legitimate objective of ring-fencing matters relating to the constitution. This has been done in Clause 9 for the Human Rights Act; it can surely be done for other matters. Rather than a list, I would prefer the broad phrases suggested by the noble Lord, Lord Norton of Louth.

Lord Bassam of Brighton: This has been an interesting debate on an issue which, I recognise, has caused some concern in the past: the imagined potential of this Bill to interfere with the constitution. I thought we had got beyond that point but clearly it is a concern, and I shall deal with the proposed remedies, which differ considerably. There are three from the Liberal Democrats, in one bundle of amendments; two different ones from Conservative Front Benches and Back Benches; and another. It is a difficult but interesting attempt by noble Lords to come up with the same tune, which I think is the expression used by the noble Lord, Lord Henley.
	Listening to the contributions, I thought we were talking about a rather different Bill because I do not recognise it as other noble Lords describe it. While I can understand the noble Earl, Lord Onslow, being suspicious of all ministerial pronunciations, in the end we have to trust the Government to mean what they say about the intention of their legislation. It is certainly not our intention—it never has been—to make inappropriate constitutional changes by using the order-making power in Clause 1.
	This Bill is, in many respects, very different from the Bill as it was when it was brought before another place because we have reflected long and hard on the constitutional concerns raised. We have taken those concerns very carefully into account and amended the Bill in such a way, I would argue, as to ensure that if ever there was a suspicion that this or future Governments could use this Bill in a controversial way to amend elements of the constitution, we have put that suspicion beyond peradventure.
	Clause 1(3) defines the burdens that can be removed or reduced by the order-making power. It is very difficult to see how constitutional change could be squeezed into that definition. In any event, robust preconditions inserted through Clause 4 must be satisfied before an order can be made. Notably, these preconditions include: that the provision made by the order strikes a fair balance between the public interest and the interests of any person adversely affected by it; that it does not remove necessary protections; and that it does not prevent any person continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise. These preconditions could fairly be used to prevent the kind of constitutional mischief for which noble Lords imagine a Government might want to use the Bill.
	Furthermore, Clauses 17, 18 and 19 provide that parliamentary committees can veto orders. The Government have already tabled amendments that remove the criteria on which the veto can be exercised. This is a powerful check, giving the whip hand to Parliament should it disagree with the Government on the appropriateness of an order. It therefore seems that there is a risk that these amendments cry wolf. Can the order- making power in Clause 1 be used for constitutional change beyond the declared purpose of better regulation? I have expressed the view that it cannot. We are fortified in our view by the reports of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee of your Lordships' House. The Delegated Powers and Regulatory Reform Committee said that the Clause 1 power is not inappropriate. The Government consider the amendments in this group to be unnecessary, and there are very great difficulties in framing amendments of this kind.
	At Second Reading, the noble Lord, Lord Goodhart, reflected on this conundrum. His Amendments Nos. 51, 52, 62 and 63 do not list a set of constitutional enactments—if such a class of legislation could be said to exist—which he acknowledged would be difficult, if not impossible, to define.
	The noble Lord, Lord Kingsland, raised this issue at Second Reading in relation to listing constitutional or protected enactments. I have set out the Government's view on this in a letter which has been extensively circulated. The noble Lord's Amendment No. 75A lists those Acts identified by the Constitution Committee. This list drew on a similar list drawn up by the Joint Committee on the Civil Contingencies Bill. However, the committee also identified a number of other Acts passed since the passage of that Bill—the Constitutional Reform Act, the Identity Cards Act, the Equality Act and the Racial and Religious Hatred Act—which the noble Lord's amendment does not include.
	What of changes to local government? I have heard noble Lords in this House argue that a new piece of local government legislation that relates to finance or the structure of local government in a sense treads on constitutional territory. What of the creation of the Greater London Authority? Was that a constitutional act? Definitions and inclusions on lists are very difficult: defining such a list is like asking how long is a piece of string. Where would it begin and end? This list shows that difficulty.
	If we were to include the Equality Act and the Racial and Religious Hatred Act, then why not the Sex Discrimination Act, the Race Relations Act,the Disability Discrimination Act, the Equal Pay Act or the minimum wage legislation? Where is the boundary between an Act with constitutional implications and an Act that relates to the fundamental building blocks of our constitution? What of the many other Bills on which the Constitution Committee has reported? What ofthe Armed Forces Bill, the Police and Justice Bill, the Serious Organised Crime and Police Bill, the Prevention of Terrorism Bill and the Inquiries Bill, on which the committee reported in the current and previous Session of Parliament? Is the constitution solely contained in Acts of Parliament? That is a concept we need to focus on. What about concepts such as parliamentary sovereignty?
	Furthermore, as the noble Lord acknowledged, it would be foolish to put some Acts off limits when it may be necessary to make minor and sensible changes to them for the purposes of better regulation—what I might call an appropriate constitutional change. The noble Lord, Lord Norton of Louth, did not seemto think that there might be any appropriate constitutional changes. There may be issues of minor importance which are not highly controversial and not ruled out by Clause 4 that it would be perfectly acceptable to change in this way.
	How would such a list be kept up to date? For instance, the amendment of the noble Lord, Lord Kingsland, includes the Government of Wales Act 1998. But as Members of the Committee are aware, Parliament is considering a Bill that would supersede the 1998 Act in shaping Welsh devolution.
	At Second Reading, the noble Lord asked me my view on the list contained—

Lord Bassam of Brighton: I shall come to Clause 9 in due course; it raises a fair point.
	I have set out the committee's important point along with our view. Presumably because of these difficulties, the noble Lords, Lord Goodhart and Lord Maclennan, have tabled amendments setting out other ways of affording protection against the Clause 1 power being abused to make major constitutional changes. Amendment No. 62 does this by providing a hurdle over which Ministers and the Speakers of either House must jump: the Speakers of either House can certify that an order is of constitutional importance which has the effect of vetoing the order.
	Amendment No. 62 would effectively introduce a new precondition providing that orders cannot be used for measures of constitutional importance. However, the existing preconditions have already filtered out the possibility that an order could be used for a matter of constitutional importance. As the noble Lord, Lord Goodhart, explained very clearly, the amendment provides that the Speaker of either House could determine that a matter was of "constitutional importance" on application from a Member of that House. If the relevant Speaker determined that an order was of constitutional importance, he would issue a certificate to that effect and the order would be halted in its tracks. The intention of the clause is that the Speaker's decision would not be justiciable since it would be protected by an ouster clause.
	We argue that this does not work. There is no comparison with the role of the Speaker of the Commons in certifying that a Bill is a Money Bill—a demonstrable fact. Nor is it comparable to the role of the Speaker in relation to the Parliament Act, where the Speaker's role relates solely to ensuring that certain procedures had been followed. The amendment risks drawing the Speakers of either House into a highly subjective, highly political debate. I suggest that this is undesirable, not least in your Lordships' House where noble Lords have given no indication that they would support a Speaker having a substantive role of this sort. The noble Lord, Lord Henley, made that point very effectively. Given recent debates, I suggest that the proposition that the Lord Speaker makes this judgment in your Lordships' House would attract a good deal of controversy from the Benches opposite.
	It is interesting that Amendment No. 62 puts the matter of judgement in the hands of the Speakers rather than the parliamentarians. AmendmentNo. 63, also tabled by the noble Lords, Lord Goodhart and Lord Maclennan, provides a new clause that would prohibit an order made under Clause 1 making any alteration to a range of matters that might be described as constitutional.
	The list provided in Amendment No. 63 is certainly an improvement on a broader list of constitutional subjects, which would lead to some very difficult issues around judging "purpose". But it does not avoid the difficulties of defining what is or is not constitutional change, and in seeking to define a constitutional change or issue, it creates new problems of definition.
	That also applies to Amendment No. 75 tabled by the noble Lord, Lord Jenkin of Roding. This is a mixture of a few individual statutes and certain subjects. It therefore falls foul of the difficulties identified by the Constitution Committee in listing individual statutes and constitutional areas. On the former, for instance, it does not include the legislation governing devolution for Wales but it does for Scotland.
	Amendment No. 75A, in the name of the noble Lord, Lord Kingsland, provides, yet again, a different list. It includes the Government of Wales Act 1998 but the very fact that the list is so different from the lists in Amendments Nos. 75 and 63 illustrates the difficulty of deciding what would be an appropriate list. Again, that point was made by the Constitution Committee.
	Amendment No. 64 of the noble Lord, Lord Norton of Louth, takes a less expansive view of what is "constitutional" and therefore might require special protection. It sees "constitutional" more in terms of the relationship between the main branches of the state. We might therefore see the proposed new clause as protecting the constitutional relationship under the Bill of Rights from change by the order-making power in the Bill. However, the problem remains that such a list is partial. In addition, the Constitution Committee recognised the difficulties with devising a schedule of exempted areas. It states that a schedule would be "something of a blunderbuss approach". That is an adequate description. The committee notes that not all provisions in Acts with constitutional implications affect our constitutional arrangements and concludes that,
	"it might be thought wrong to exclude such provisions from the general operation of the bill".
	Amendment No. 51 would introduce a new precondition so that the order-making power could not be used adversely to affect the rule of law or the independence of the judiciary. As the Bill stands, I cannot see how any order could do such things. As a matter of course, Ministers have to act under the rule of law. By definition, Ministers cannot do anything for which they have no legal authority. It is therefore hard to see how Ministers could promote an order that adversely affected something they were bound to follow.
	It is also hard to see how it would be possible adversely to affect the independence of the judiciary. Under Clause 4, a Minister cannot make an order which he considers removes a necessary protection. It is therefore difficult to envisage how a Minister could conclude that an order which adversely affectedthe independence of the judiciary satisfied that precondition. Furthermore, it is hard to see how Parliament would agree to such an amendment, and it is difficult to see how such an order would survive judicial consideration of vires, given that secondary legislation is subject to judicial scrutiny.
	The Government are satisfied that such fundamental changes could not be made by order under the Bill. The Clause 1 and Clause 2 powers are circumscribed: they can be used only to make sensible reforms removing or reducing burdens or promoting regulatory principles. This is guaranteed both by the preconditions and by the power of Parliament to veto an order. Since the order-making power in Clause 1 cannot be used for constitutional change, these amendments are otiose. There is no need to make any protection against orders being used for that end.
	The noble Lords, Lord Jenkin and Lord Borrie, and others made reference to the exemption of the Human Rights Act and Part 1 of the Bill from reform by order. It is true that the Government amended the Bill in the Commons to put amendments to the Human Rights Act off limits. This is not, though, because this is a constitutional statute which differs from other statutes, but because secondary legislation must be compliant with the Act. Therefore, it would be an illogical absurdity were the order-making power to be used to amend the Human Rights Act and so remove the safeguards provided by that Act. Similarly, it would be strange if orders could be used to remove the limits on the order-making powers contained in Part 1. For those reasons and others that have been adduced, I cannot accept the amendments. However, I accept that they were moved not only in good spirit but for very good reasons. I hope that I have answered the various points relating to noble Lords' quite understandable concerns to protect our constitution.

Lord McKenzie of Luton: I apologise to the noble Lord if that letter has not yet arrived. Together with my noble friend Lord Bassam, I shall do what I can to expedite it and make sure that it arrives soon.

Lord Henley: I shall also speak to Amendment No. 74B. These amendments would insert more protections into Clause 8. Subsection (1) currently inserts only two prohibitions to the order-making power. An order cannot authorise any forcible entry, search or seizure or compel the giving of evidence. The Explanatory Notes are particularly unhelpful on this; when explaining why these provisions appear, they merely state:
	"The restriction in clause 8(1) on making provision authorising forcible entry, search or seizure, or compelling the giving of evidence, derives from the 2001 Act (section 3(5))".
	The reliance on the 2001 Act as some kind of precedent to justify the Bill has been a somewhat disingenuous tactic throughout our debates. I hope the Minister will not merely recite that justification, which is implicit in the Explanatory Notes. Just because the Government succeeded in getting their Bill passed in 2001, that does not mean we should cease to scrutinise any similar measures in this new Bill. The Minister has often referred to how the Bill will be more effective than the 2001 Act. Any protections or safeguards, therefore, have to be considered against these new powers to test whether they are sufficient. With that in mind, will the Minister explain exactly why those particular protections have been singled out in Clause 8, as opposed to anything else?
	The Committee will see that in AmendmentNo. 74A my noble friend has suggested a list of possible protections to be built into Clause 8, in addition to the two that were already there. She took as her starting point the Civil Contingencies Act 2004, where, in Section 22(3), the Government have provided a frankly alarming shopping list of things they would like to do by emergency regulations. I hope that transposing the powers suggested in that Act into protections in this Bill will be a useful starting point in discussing what protections are needed here in Clause 8.
	As always, I am not suggesting—as, I suspect, my noble friend Lord Onslow would—that this Government would use the order-making powers in Part 1 as a substitute for using the powers in the Civil Contingencies Act. My point is that if the Government believed that these types of powers were necessary only in an emergency, why can they not provide a safeguard, written into the Bill, that these types of powers will never be included in the order-making powers the Bill proposes?
	I turn now to Amendment No. 74B. Clause 8(2) provides for the circumvention of the protections provided by Clause 8(1), and states that subsection (1) does not prevent an order from extending any power for purposes similar to those to which the power applied before the order was made. Does that not effectively render any protection in subsection (1) redundant? In other words, so long as the purpose of the power is similar to a previous power, it can be extended, regardless of the fact that it would authorise search and seizure of property or compel the giving of evidence.
	No doubt the Government will again pray in aid the 2001 Act. However, that is not a satisfactory argument by itself to justify the appearance of this provision. Section 3(5) of the 2001 Act stated that an order could not do anything that would authorise forcible entry or compel the giving of evidence,
	"unless a provision to that effect is contained in an enactment repealed by the order and the powers conferred by the provision to that effect contained in the order are exercisable for the same purposes as the powers conferred by the repealed enactment or for purposes of a like nature".
	I accept that this has the same effect as Clause 8(2), but I would be interested to hear who decides whether the new extended powers to be granted by the order are for purposes similar to the previous powers. I imagine that in the end it would be the courts themselves. The key question is to what extent "similar" allows a margin of flexibility for the Minister making the order-making power. Would not "identical" be more appropriate, if Clause 8 is to have any point whatever? I beg to move.

Lord Bassam of Brighton: Amendment No. 74B seeks to restrict the power of an order to make provision authorising forcible entry, search or seizure or the compelling of the giving of evidence, except where an order is merely restating an existing provision in an enactment that does one of those things. This amendment removes the ability of an order to extend existing powers for purposes similar to those to which they already apply. The noble Lord, Lord Henley, has carefully set that out.
	I understand the noble Lord's concern about the scope of the power in Clause 8(2). However, the provision, as he has noted, is not new; it is a carryover from the 2001 Act. The Government believe that that is correct, to retain the flexibility that Clause 8(2) provides. I shall describe why that is the case. I ought to add in parenthesis that I am not aware that the provision in the 2001 Act has ever been used, and it would only ever be our intention to ensure that the provision would be used sparingly.
	There may be occasions when both the Government and Parliament agree it is appropriate for an order to extend existing powers for purposes similar to those to which they already apply. I give an example: where an existing statutory power is conferred on a particular body authorising it to search and seize certain types of goods from cars and vans. Extending it for a similar purpose could mean so that trains could be searched by that body. In the case of an order under Clause 1, the order would of course need to remove or reduce burdens. Where an order reformed a particular inspection regime and replaced it with a less burdensome one, the changes to the regime might require an existing power authorising forcible entry, search or seizure to be extended slightly to fit better with the new regime.
	Amendment No. 74A lists additional restrictions on the powers an order may authorise. The restrictions given are unnecessary and, without listing specific activities, it is unclear what effect the third condition would have. There are existing protections against the misuse of the order-making power in Clause 1, both within and outside the extent of the Bill. The effect of the Human Rights Act 1998 is that it is unlawful, for instance, for a Minister to make secondary legislation that includes orders under Part 1 which are incompatible with the convention rights. For example, the right in Article 1 of Protocol 1 to the European Convention on Human Rights already protects property rights.
	Regarding both Amendments Nos. 74A and 74B,I reiterate that orders must also satisfy the preconditions in Clause 4. In particular, provisions must not remove any necessary protection or prevent any person continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise. Ultimately, though, Parliament may veto an order it considers inappropriate on any grounds, so the power of veto is a powerful tool indeed.
	I have already made clear on a number of occasions that we have given an undertaking not to deliver highly controversial proposals by order, and not to force orders through in the face of Committee opposition. I also stress the importance of viewing the powers in Clause 8 in the context of better regulation. Investigative powers should not have a negative impact on good businesses. Rather, they should be used only in a targeted way; for example, against rogue traders. For those reasons, I cannot support the amendment, and I hope the noble Lord will feel able to withdraw it.
	The noble Lord asked who decides if the purposes are similar, which is a fair point. It is the Minister making the order, subject to the decision of both committees, which have the power of veto, and subject to the views of the court in the case of a judicial review—perhaps one arising from a criminal prosecution. That fairly settles the question that he reasonably asked.

Lord Borrie: The noble Lord, Lord Norton of Louth, is of course right in saying that Parliament must determine which of the variety of possibly procedures should be followed, but I would add the word "ultimately". Surely it is appropriate in our Parliament, where Ministers are also Members of Parliament and take a lead in determining business, that they should be the ones who propose. Parliament should then dispose and determine the result.
	I oppose the suggestions of the noble Lord, Lord Goodhart. I think it would be quite inapt in our Parliament to elevate a Select Committee to the position of determining matters that should ultimately be within Parliament's right to determine. It is not at all right that that should be so. "Recommend", it seems to me, is the suitable word to use. Anything else would be a way of subverting the normal life of Parliament. I can understand why the device has been proposed, but its use would not be in accordance with our conventions.

Lord Bassam of Brighton: This is an important group of amendments which, as the noble Lord, Lord Henley, said, range far and wide in their cover. There is a thread pulling them all together in that they deal with the Bill's procedural requirements for making orders, including the statutory veto provided to parliamentary committees.
	In the interests of clarity, I shall address the government amendments first, as noble Lords would expect. Government Amendments Nos. 94, 95, 101, 106 and 109 deal with the statutory veto that the Bill provides to relevant parliamentary committees. In the light of concerns that have been expressed during the Bill's passage through Parliament, including those of the Delegated Powers and Regulatory Reform Committee, the Government resolved to remove the criteria to which the statutory veto is currently tied—a measure to which government Amendments Nos. 95, 101, 106 and 109 give effect.
	A number of noble Lords have supported Amendment No. 95, which removes from the Bill the criteria for exercising the veto for orders subject to the negative resolution procedure. I assume that noble Lords would agree that, if the conditions for exercising the veto should be removed, it is right that that be the case for all orders, irrespective of the procedure to which they are subject. An alternative arrangement would be inconsistent and is likely to be unacceptable to Parliament and its responsible committees. On that basis, I hope that noble Lords are satisfied by the government amendments on the issue.
	Government Amendment No. 94 also makes a minor drafting change to Clause 17 to clarify that the effect of exercising the veto, where orders are subject to the negative resolution procedure, is that the Minister cannot make the order. I commend both sets of amendments to the House.
	Government Amendment No. 110A is minor and technical, and mirrors a similar provision in the 2001 Act. Clause 15(2)(f)(ii) requires the disclosure of details in the explanatory document laid before Parliament of representations received as a result of the consultation required by Clause 14. However, that is subject to Clauses 15(4) and (5). The first provides that the Minister must not disclose information which the consultee asked not to be disclosed, if the disclosure of it would amount to an actionable breach of confidence, were it not for parliamentary privilege. The second provides that where the consultee provides information about another person, the Minister need not disclose that information if it appears to the Minister that the disclosure could adversely affect the interests of the other person, and the Minister has not been able to obtain the third party's consent to disclosure of the information which could affect them. Clause 15(6) makes clear that neither of these restrictions prevents disclosure to a committee charged with reporting on the draft order which asks for the information.
	Clause 19—the super-affirmative procedure—requires the Minister to disclose details of representations made during the 60-day period of scrutiny about the draft order. There is, however, no provision restricting that obligation similar to the provisions in Clause 15. So the Minster would have to disclose that information even if the disclosure would involve a breach of confidence or would adversely affect the interests of a third party.
	Amendment No. 91, moved by the noble Lord, Lord Norton of Louth, provides for all orders to be subject to the super-affirmative resolution procedure unless either House of Parliament requires a less onerous procedure. I understand why the noble Lord moved the amendment and I am grateful to him because, in doing so, he accepted my point when we were debating Amendment No. 79, which is that it is Parliament, rather than the Minister, who is, if you like, in control of the process. I remind noble Lords that the Bill already provides that Parliament can, in all cases, request that an order proceed via the more onerous super-affirmative procedure.
	As an example of that, I cite the example of the Regulatory Reform (National Health Service Charitable and Non-Charitable Trust Accounts and Audit) Order 2005. That demonstrates how this works. Some orders are straightforward, and in such cases there seems little value in preventing a Minister from even recommending that an order should proceed by the affirmative or negative procedure.
	Amendment No. 91 provides that the method for determining the appropriate level of parliamentary scrutiny should be left to the House to determine, thus removing explicit reference to the committees' ability to recommend a more rigorous procedure. I understand that the noble Lord wishes to remove that detail from the Bill.
	Our view is that, following government amendments tabled on 27 June, the Bill contains the right level of detail to ensure legal certainty about the order-making process. The inclusion of detail is necessary, as it clarifies the procedural requirements for delivering proposals via the order-making powers and ensures that the procedures in the Bill present a useable mechanism for delivering reforms by order. For that reason, I cannot support the noble Lord's amendment.
	Amendments Nos. 92, 97, 103, 108 and 110 seek to remove the ability of a House of Parliament to overturn recommendations made by its responsible committee. Amendment No. 92 would make a committee recommendation for the level of scrutiny indisputable, and Amendments Nos. 97, 103, 108 and 110 would make a veto exercised by the committee final. Like the noble Lord, Lord Borrie, I express my concerns about the effects of the amendments. Making provision that a committee decision could override the opinion of the rest of the House and bind it, would be an unprecedented step that may be unworkable in practice. Ultimately, it is a matter for the House to decide whether and how often it might want to overrule the recommendations of one of its committees. However, the Government do not consider it appropriate to rule this out entirely and leave no flexibility for the House to decide. The recent Delegated Powers Committee report supported this view. It found that,
	"it is right that a Committee's recommendation that an order should not proceed...should have the consequence of preventing further proceedings unless and until the House says otherwise."
	So it must be for either House of Parliament, or perhaps both of them, to make that final determination. That must be right. In saying that, we respect the right and proper parliamentary process and, for that reason, I cannot accept the amendments.
	Amendments Nos. 93, 98, 100 and 104 seek to remove the time restrictions on when committees can exercise their statutory veto over orders. As a result, the parliamentary scrutiny committees could veto an order as soon as it was laid before Parliament. The time restriction for exercising the veto is in place to encourage committees to explore all the options before fully rejecting an order, to consider increasing the level of procedure to which the order is subject, to undertake full scrutiny and, in the case of the super-affirmative procedure, to undertake further consultation and recommend amendments to the order. The civil registrations regulatory reform order is a good example of what we consider to be thebest approach. Here, parliamentary committees recommended that the order should not proceed, but only after extensive and careful consideration. We simply want to build on this experience, which is an invaluable guide to how matters should develop in the future.
	Amendments Nos. 99, 105 and 111 seek to clarify that if an order is vetoed under the negative, affirmative or super-affirmative procedures, the Minister may return to the consultation process and subsequently re-lay the same draft order before Parliament. By contrast, Amendments Nos. 94A, 103A, 108A, and 110B specify that if Parliament vetoes an order, no order may be tabled in the terms of the original draft for a period of two years.
	On Amendments Nos. 99, 105, and 111, there are no restrictions in the Bill concerning the resubmission of a draft order, so the amendments are unnecessary. Both sets of amendments, however, although approaching the issue from different perspectives, give rise to an important question about the future of a proposal that has been vetoed by Parliament. My response to the amendments is that this Government and any future Government would not be inclined to reintroduce a proposal in exactly the same form after it had been vetoed by Parliament. Parliament would obviously be liable to veto the order again, and a Government would be unlikely to allocate the time or resources required to restart the process. Equally, however, it is right and proper that if, following additional consultation, evidence exists to substantiate a proposal, it should be possible to re-lay an order before Parliament, perhaps in a slightly amended form and at a later date. In other words, if it can be improved, if there is time to improve it, and if there is evidence, it seems unreasonable and inflexible to prevent that from happening. One would expect the order to be an important element of the deregulatory programme. We are not trying to create a situation where the Government might try with a minor amendment to slip something through on which they failed the first time; it is a matter of making a substantial improvement to the proposal and ensuring that the evidence is there to substantiate it.
	The noble Lord, Lord Henley, gave notice of an intention to oppose the Question on whether Clause 19 should stand part of the Bill. This clause sets out the requirements for making orders subject to the super-affirmative procedure. As I am sure noble Lords are aware, it is a well tried and tested process which has proved suitable for more complex regulatory reform orders. In its recent report, the Regulatory Reform Committee commented that a strength of the process is that regulatory reform orders received more detailed scrutiny than they would if they had been included in a large Bill. The Government anticipate that the super-affirmative process will continue to provide appropriately in-depth scrutiny for those more complex orders. I admit that the rationale for removing the most onerous level of parliamentary process from the Bill is not clear to me. As a Government we are committed to ensuring that orders receive effective and proportionate levels of parliamentary scrutiny. Central to that, however, is ensuring that, where orders require more comprehensive scrutiny, they can be made subject to the super-affirmative procedure. For that simple reason, which I should have thought is one to which we could all sign up, we wish to retain the provision for orders to be made under this procedure. I therefore propose that Clause 19 should stand part of the Bill.
	The noble Lord, Lord Henley, made the point that the super-affirmative procedure was withdrawn from the Company Law Reform Bill. It was withdrawn when the order-making power was removed from the legislation. As I am sure noble Lords are aware, the procedure is a part of many different pieces of legislation, including the Human Rights Act 1998. The noble Lord also asked an important question about the nature of the committees the Government consider should be responsible for scrutinising orders under the powers in this Bill. We had considered that the Regulatory Reform Committee and the Delegated Powers and Regulatory Reform Committee would continue to perform that role, but we have absolutely no objection in principle to other committees such as departmental Select Committees becoming involved in the process. It would be a very appropriate way for them to ensure that the process is thorough, and they would bring to these considerations their specific, detailed knowledge. We want to continue a constructive dialogue with the chairs of those committees on this issue.

Lord Goodhart: The purposes of this amendment are related to those in Amendment No. 85, which I moved earlier. It is a technical but important amendment, recommended by the Joint Committee on Human Rights in its 17th and 21st reports of the current Session.
	Under Section 21(1) of the Human Rights Act, an order which amends primary legislation is itself treated as primary legislation and cannot be quashed on the grounds of incompatibility with convention rights. It is certainly my understanding that that is the correct interpretation. The Government appeared earlier to take a different view and suggested that such an order could be quashed on the grounds of incompatibility, but I do not think that that is correct. I believe that the effect of Section 21(1) of the Human Rights Act is that an order which is introduced under this Bill cannot be quashed on the grounds of incompatibility; it can only be declared incompatible.
	Confusingly, it appears that an order made under this legislation can be quashed on other grounds. For example, it is ultra vires on grounds other than incompatibility, such as failure to comply with a statutory procedure or to meet the conditions set out in Clause 4. It seems plainly inappropriate that such a distinction should be drawn. It would be an abuse of the order procedure under the Bill deliberately to make a provision which was incompatible with the Human Rights Act. Such provision would be in breach of what is plainly one of the core statutes of our constitution. If incompatible legislation is to be passed, which Parliament has the power to do under the Human Rights Act, then it should be part of primary legislation only after it has had full consideration in both Houses of Parliament. I beg to move.

Lord Bassam of Brighton: I am sure that noble Lords will not be at all surprised to hear that I am not a fan of this amendment and that I am firmly set in my opposition to it. The idea of sunsetting Part 1 does not make a lot of sense to me. The government amendments tabled ahead of and accepted on Report in the Commons mean that the order-making power is clearly focused on better regulatory outcomes. Simply to set an arbitrary date for the expiry of Part 1 would, for the reasons I am about to adumbrate, be wholly inappropriate.
	It is my firm belief that there is no need for a sunset clause. The safeguards contained in the Bill, coupled with the rigorous parliamentary scrutiny that any proposal will undergo, and the ability for Parliament to veto orders, are sufficiently robust. There is no need to introduce the level of uncertainty that a sunset provision would bring. We can be confident that we are passing a robust Bill that will stand the test of time.
	The approach that we need to take is one of partnership of regulators and regulated working together. What message would we be sending the business community and the public and voluntary sectors if we arbitrarily stopped working with them on this? I think this would be the only conclusion that they could draw were we to insert a sunset clause. Are we to say that the Government are interested only in the short term? Of course we are not. This is a long-term approach to legislation and regulation, and any Government would be foolish not to look to the future.
	We have talked a lot about changing the culture, and a lot of that means that we have to get departments to invest resources in pursuing reforms that may in the end not prove possible. Will departments do that if there is a five-year cut-off point? An important element of the culture change we see as necessary is one of confidence in methods for delivery, and knowing we are achieving what is needed, and that work can continue without an arbitrary deadline preventing it. People should be able to rely on primary and secondary legislation—a point made on a number of occasions already during today's debates. We want to avoid a situation where those who are regulated by an order do not have confidence in its provisions and think that it will simply be overturned and lapse. I hope that orders will be able to deliver wide-ranging reforms such as those that I have elucidated in connection with the Regulatory Reform (Fire Safety) Order. It is important that, for instance, the large numbers of businesses complying with the fire safety order have confidence in its provisions. We want Parliament to pass a power that it has confidence in now and, this being the case, should have confidence in for the future.
	The Government have already given the undertaking that a Minister of the Crown will report to the House within five years after enactment on the operation and effectiveness of the Bill. If the sunset clause was included in the Bill, then even if at the end of five years Parliament wanted this power to continue, it would simply expire; no further orders could be made and the 2001 Act certainly would not revive them. We would have two options in those circumstances, neither of which is edifying or compelling: either to introduce new primary legislation for a new order-making power, or to have sensible and beneficial proposals that would have been made by order having to wait to be made by primary legislation instead. Those appear to me very cumbersome ways in which to deal with things that we believe are best dealt with in this respect. I doubt whether noble Lords have given this careful consideration, particularly in terms of its impact on businesses.
	There is nothing in Amendment No. 112 to ensure that orders already made under Part 1 will remain in place—if, indeed, that is the intention. If they do not remain in force, everything done by them, including amendments to primary legislation, would in effect be repealed. I can only assume noble Lords intend existing orders to remain in force, otherwise all the efforts of departments and the beneficial reforms made over five years would be completely wasted. Unless there is an express provision to that effect, however, the position cannot be entirely free from doubt. That is why we have a saving provision in our Bill to make it completely clear, when we repeal the 2001 Act, that orders made under it will continue to have effect.
	Similar amendments to introduce a sunset clause were tabled when both the 1994 and 2001 Acts were going through Parliament, and during the passage of the 1994 Act the then Conservative Administration—wisely, in my view, although perhaps I would not have thought so at the time—resisted them. I think they were right to do so. What was good for a good old-fashioned Tory Administration in 1994 was good enough for us in 2001, and should be good enough in 2006. Noble Lords opposite should stick to their original intentions and withdraw this amendment.

Lord Bassam of Brighton: I will work through the grouped amendments and the stand part clauses. I am not entirely sure what the noble Lord, Lord Norton of Louth, is trying to achieve with his amendment because it would mean that the only principle of good regulation left in Clause 23 would be the one to ensure that regulatory activity should be targeted only at cases in which action is needed. I am aware that the noble Lord chaired the Lords Select Committee on the Constitution when it produced its report The Regulatory State: Ensuring its Accountability, but I am not clear from my understanding of that report whether the noble Lord has another target in mind in moving his amendment.
	I am not here to defend whether the Better Regulation Task Force, now the Better Regulation Commission, accepted this recommendation from the committee, but I am here to defend the fact that all five principles of good regulation are sensible principles that should underpin regulatory activities. I challenge the noble Lord to dispute the importance of those five principles of good regulatory practice. They are widely regarded as the gold standard for judging regulation, and they are the baseline standard that our Government want to set for the exercise of regulatory functions. However, they are not unprecedented, and they can also be found in the Communications Act 2003, where they apply to the regulatory functions of Ofcom. Given the variety of functions that regulators have and the variety of contexts in which they operate, inconsistency of approach is a real risk and could cause difficulties for those regulated businesses.
	Would the noble Lord have it that regulatory activities should be targeted only at cases in which action is needed but that these activities are carried out in a disproportionate, unaccountable or inconsistent manner? We insist that the regulatory environment that we are trying to foster is one in which regulators do not use a sledgehammer to crack a nut, and where there is a clear understanding of accountability and the need for consistency. Regulatory activity should be targeted only at cases in which action is needed, but the action taken must be proportionate to the problem or risk involved. The noble Lord's amendment implies that so long as you are targeting the right nut, then however you crack it is fine.
	I think I understand the rationale for Amendments Nos. 112B and 113A. The noble Baroness seems to require the duty to have regard to both the principles and the code of practice to be more onerous than it currently is. While I am delighted that the noble Baroness is as eager as we are that there is a statutory duty to have regard to the principles of good regulation and the code of practice in the Bill, I do not share her view that we should remove subsections (3) and (4) of Clauses 23 and 24. The effect of these subsections is that the statutory duty to have regard to the principles and the code of practice is subject to any other legal requirement affecting the exercise of the regulatory function, such as another statutory duty or Community law requirements. That means that, in the event of overlapping obligations, any other legal requirement affecting the exercise of the regulatory functions to which Clauses 23 and 24 apply takes priority over the duty to have regard to the principles and the code. That ensures legal certainty for those exercising regulatory functions.
	This clause is not a let-off for regulators, as was suggested in another place. Regulators will not be able to use their founding legislation to ignore the principles. They will have to have regard to the principles and the code of practice, once issued, when exercising any functions which have been listed in an order under Clause 26 wherever the exercise of the function is not already affected by a legal requirement. Where there is a conflict, this Bill will provide the Government with more tools to act and intervene.
	Amendment No. 113 is an unnecessary amendment, which the Government cannot accept. Philip Hampton, in his report Reducing administrative burdens: effective inspection and enforcement, recommended that the Government establish a Better Regulation Executive at the centre of Government. We accepted those recommendations in the Budget Statement in 2005. Noble Lords will know that the BRE has been established and is working with regulators to devise how best it can hold regulators to account for their performance against the principles of regulation. Alongside this assessment work of the BRE, regulators will continue to be held to account for their financial performance by the National Audit Office and the Audit Commission, and for policy by their sponsoring departments, whose decisions in this area will be assessed by the BRE.
	For example, following an invitation from the Treasury under Section 12 of the Financial Services and Markets Act, the National Audit Office is reviewing the economy, efficiency and effectiveness with which the Financial Services Authority has used its resources, when discharging its statutory functions. Moreover, the draft regulators compliance code, which the Government seek to place on a statutory footing under the provisions of Clause 24, proposes that regulators be required to publish clear standards for service and performance, against which they measure their performance each year, and publish the results.
	We feel that enough is being done to ensure that regulators are held to account with regard to the exercise of their regulatory functions and that Amendment No. 113, if accepted, would add an unnecessary layer of bureaucracy to the existing mechanisms by which the Government hold regulators to account. For those reasons, I insist, or, rather, suggest that noble Lords opposite do not press their amendments.
	For many of the reasons that I have set out, we would also oppose the removal of Clauses 24, 25 and 26. The code of practice procedure is important. The Minister must follow particular requirements when proposing to issue or revise the code of practice. The procedural requirements are broadly similar to those in place for revising the code of practice set out in Section 10 of the 2001 Act.
	Clause 26 enables a Minister of the Crown to specify by order which regulatory functions are functions to which the duties have to have regard to the principles in Clause 23 and the code of practice in Clause 24 and its application. We welcome the general support that we have had from opposition parties, but I would draw to the attention of noble Lords opposite the importance of Clause 26, which ensures that the Minister or the Assembly must consult any persons whose functions are to be specified in the order made under that, and consult other persons as the authority making the order considers appropriate. An order made under this power must be made by statutory instrument, and where the Minister makes the order, it will be subject to the affirmative resolution procedure, by virtue of subsection (9).
	Clause 26 stands or falls with Clauses 23, 24 and 25 and will enable us to deliver the recommendation of Philip Hampton's report through changing the way in which regulators behave. For those reasons Clause 26 should stand part of the Bill.
	The noble Baroness asked why the detail of the code is not on the face of the Bill. We have produced an initial draft of the code. We are working with regulators on its detail and it is subject to change. So we require that flexibility in order to be able to change it—very much having listened to the views of formal consultees. Formal consultation on the code will take place after Royal Assent but that does not diminish our commitment to ensuring that we pay careful attention to the representations made to us.

Viscount Colville of Culross: I am so glad that this amendment is not grouped with anything. Nobody in the Committee can be expected to understand what it concerns except those who sit on the Merits of Statutory Instruments Committee. That includes, or did include, the noble Lord, Lord McKenzie of Luton. I have given detailed comments to the noble Lord, Lord Bassam, about what I am going to say so I hope that he will be able to follow it. I do not expect anybody else to understand it at all.
	It is all about transparency. There are two keynotes in this Bill. One of them is the removal of burdens, including, among other things, criminal sanctions. That involves criminal sanctions not only on businesses, charities and everything else but also, I was delighted to hear the noble Lord, Lord Bassam, saying on 3 June, on individuals. The Bill alsohas a keynote of promoting, in Clause 2(3)(a), transparency.
	Departments in drafting statutory instruments are complying with neither of those principles. That is especially a matter for Defra but the DTI is not exempt; it is when it is transposing EU directives or regulations that it falls into the trap that I am about to describe. I have given the noble Lord, Lord Bassam, some examples, which I hope he haslooked up.
	I shall begin with an example from the Department of Trade and Industry—2006/1719. It states in Regulation 2:
	"Any person who, except under authority of a licence ... infringes the prohibition on the acceptance of technical assistance in Article 4 of Regulation (EC) No 1236/2005 shall be guilty of an offence".
	The penalty in a magistrates' court is up to level three on the standard scale. What is that? It does not say. I am not particularly sorry for the people who are being attacked by this regulation; they are those who provide materials or instruments that can be used for torture or cruel and inhuman treatment, such as thumbscrews and cattle prods. Nevertheless, whoever they are, they are entitled to know what the offence is that they are not allowed to commit but it does not say what that is in the statutory instrument.
	From Defra, I have chosen two examples. First, there is 2005/3280, which states:
	"Any person who contravenes or fails to comply with any of the specified provisions of Regulation 183/2005 set out in paragraph (2) is guilty of an offence".
	The penalties vary; on indictment it would be up to two years in prison or an unlimited fine or, in the lower courts, less.
	Paragraph (2), one of the provisions with which one has to comply, specifies Article 6(1) as read with paragraphs (2) and (3). That is described as the HACCP system. It then goes on to Article 7(1), on documents concerning the HACCP system. Nowhere in the statutory instrument is the HACCP system explained. In fact it is a hazard analysis and critical control points system; but one can find that out only if one reads the Explanatory Memorandum, which of course is not published with the statutory instrument at all and can be obtained only separately. There are also Community codes of good practice. We do not know what will be in those, and presumably if one fails to comply with them, that will also be a criminal offence. But we do not know what they are. The provision is about animal feed. However, it does not apply only to those commercially producing animal feed, but also to individual farmers.
	Recently, we have had statutory instrument 2006/1228, which came into force on 3 May 2006. It revoked a previous statutory instrument, 2006/68, which came into force on 1 March this year. It concerns what I fully appreciate is an extremely serious problem: TSE—transmissible spongiform encephalopathy. It is a licensing provision for premises, which have to be maintained and operated in accordance with what is called "the Community TSE Regulation". There are provisions for inspections and prohibition on the movement of animals, or parts of them, a breach of which carries the normal range of penalties allowed under the European Communities Act. "The Community TSE Regulation", with which one has to comply, consists of 29 European Union instruments, including the original one—999/2001—which has at least 11 annexes, of which Annex III has been amended five times since then, and Annex XI seven times. It applies to farmers as well as to slaughterhouses and cutting plants, and some of the enforcement falls to trading standards departments.
	To understand that, there is no alternative but the internet. Trading standards departments are fairly busy. They do not deal only with animals but with all kinds of other frauds, counterfeit goods and heaven knows what. Recently I was talking to the head of a trading standards department in a very large rural community. He said that, quite apart from what they themselves need to know as enforcement officials, farmers want to know what they can or cannot do. I do not know how many of them have time to look up 29 European Union instruments on the internet—compiling the amendments to all the annexes as they go about their daily business. I remember the noble Baroness, Lady Carnegy of Lour, saying recently that farmers are under great pressure these days and I am sure that she is right.
	It does in fact go wrong. I am told by my noble friend Lady Mar, who had been listening to "Farming Today" on the BBC, that, a fortnight ago, there was a case in Flint concerning the European Union cattle passports. A man named Mark Payne, I think, was charged with 19 offences of failing to keep proper records. I think that the district judge found that there was no foundation in English law for the offences. It was said to be legal grey area going back to 2000. I asked the noble Lord, Lord Bassam—and now ask the noble Lord, Lord McKenzie—whether I could have further information on the case. I think it is quite an important illustration of what happens.
	Why will government departments not put the ingredients of the offence into the statutory instrument? Well, it has been perfectly plainly explained by Defra. It says that,
	"because EU Regulations are directly applicable in all countries, normal drafting practice is to avoid repetition of EU provisions in domestic legislation, as it may result in duplication or in the meaning of the Regulations being obscured".
	That was in a letter that the department sent last month to the committee which I sit on. What does it mean? Are we to suppose that there will be different interpretations of the directive, or regulation, in Portugal, in Latvia and in this country? The result, of course, must be an enormous burden on farmers, as well as many others. As farmers run small businesses, they are well within the ordinary scope of this Bill. Are they supposed to go straight from the milking parlour to the internet to see what is the latest regulation to affect their trade and how they carry out their farming? It is not reasonable to suppose that they could do so. The result is that the whole of these provisions are completely opaque. That is why the Bill ought to deal with this sort of matter.
	If one contrasts this approach to what happens with ordinary criminal legislation in your Lordships' House, one sees that it is very different. Members of the Committee will remember, for instance, the Theft Acts, or the recent Fraud Bill, both of which originated with the Law Commission. I do not remember anyone saying that anybody likely to be affected by these criminal provisions need only go back to the Law Commission's report to find out what the offence consisted of—of course not. We have always put what are the several ingredients of the offence in the legislation, so that people know exactly what they are not allowed to do. That is not so in the case of European Union legislation.
	I do not want to be totally unconstructive about this. If there is a difficulty over obscurity or different interpretations in different countries, then maybe Defra has the solution. There is one in the over 30-month scheme, which comes originally from regulation 719/96, but was most recently amended by statutory instrument 2005/2109 in England—I am not sure whether it applies to Wales. It now has a parallel column, setting out the article in the original European Union regulation and, in the other column, what is called "the subject matter": the requirement or prohibition. That does not appear to cause duplication or obscuration. If not, why can it not be used as a general approach? I put in the amendment that any such explanation would not be used in a criminal court by way of interpretation. It would simply help those being dealt with under these various instruments.
	Can the Minister tell me, what is the policy on duplication and obscurity? Is this Bill not the very vehicle to try to import some transparency into the process? As the parliamentary Clerks responsible for statutory instruments in their various departments evidently will not depart from this probably quite long-standing technique, should Parliament not deal with it now? I am not going to ask anybody to decide upon it tonight, but it must be addressed and I look forward to what the Minister has to say. I beg to move.

Lord Jenkin of Roding: I had not intended to take part in the debate but I was overwhelmed by the noble Viscount's arguments. Earlier in life I sometimes had to deal with successive instruments which referred further and further back until major research was needed to find out what they were about.
	I detected a sign of some movement in the reply of the noble Lord, Lord McKenzie, that he wanted to reflect on the problems. I do not believe that the bureaucratic burden on which he seemed to lay so much weight, in arguing against the amendment, should prevent departments that implement European regulations spelling out clearly in layman's language what they mean: the offence being defined and the penalties. You could always add, as one frequently sees "this is a description only". We get that in the Explanatory Memorandums supporting Bills, which say that you have to look at the actual clauses but outline what they means.
	The noble Viscount referred to the huge torrent of European legislation that pours out. We have heard the example of farmers, but it has happened to employers and others affected by the legislation. Unless its meaning is spelt out in simple layman's language, my guess is that most people give up and don't do it. As the noble Viscount said, if there is an occasion when we really ought to address what has become a very serious burden for those affected by the legislation, it is this Bill, where we are trying to lift the burden of regulation.
	One of the biggest burdens is trying to understand, if I may use unparliamentary language, what the bloody hell it is all about. The noble Viscount is saying that an explanation should be available with the document, in it or attached to it. I thought he made an extremely strong point and I hope that Ministers will take this up, because—and I say this to my noble friends on the Front Bench—we should return to it at a later stage.
	The noble Viscount was congratulated on having sat through three days of Committee; I think he deserves a much better and more positive response than he got from the government Front Bench.

Lord McKenzie of Luton: I revert to one point: if we proceed down this path, would we not have to update the instrument each time the community instrument itself was amended? That itself is a considerable bureaucratic condition.

Lord Jenkin of Roding: So what! Sorry, I am interrupting the noble Lord from a sedentary position, but at this time of night perhaps one is almost allowed to do that. It is a burden on the noble Lord's officials, but it is lifting the burden on the farmers who have to understand it. That is what it is about. We want to make sure that the people to whom the regulations apply understand what they are being asked to do or not to do.
	I am grateful for the support of the noble Lord, Lord Desai, who also served on the committee. We need to address this problem. Where better than in this Bill?

Lord Bassam of Brighton: moved AmendmentNo. 118:
	Line 2, leave out from "legislation" to "; to" in line 4 and insert "and promoting regulatory principles"
	On Question, amendment agreed to.
	Title, as amended, agreed to.
	House resumed: Bill reported with amendments.